PHI DELTA THETA’S ALCOHOL-FREE POLICY UPHELD

Tim Burke, Manley Burke, tburke@manleyburke.com

A little over ten years ago, Phi Delta Theta took the dramatic step of adopting an Alcohol-Free Housing Policy, becoming the largest men’s organization to prohibit alcoholic beverages entirely from its chapter properties.¹

The Phi Delta Theta policy was adopted by its General Council, the Fraternity’s governing board, and made a part of Phi Delta Theta’s Risk Management Policy.  The alcohol-free requirement was adopted in 1997 and phased in with complete application beginning in 2000.

While the policy has not been free from controversy, Phi Delta Theta’s enforcement of the policy has, according to Bob Biggs, its Executive Vice President, led to far fewer problems in fraternity houses, less damage to houses, fewer injuries, fewer insurance claims, better grades and higher recruitment numbers.

Recently, because of Phi Delta Theta’s enforcement of the policy, the Fraternity found itself a defendant in a lawsuit brought by six members of the Pennsylvania Theta Chapter at Penn State University.  Over the period of two and a half years, the Chapter had five separate violations of the Alcohol-Free Housing Policy.  The National Fraternity tried various methods to secure compliance with the policy, even requiring all members to sign affidavits assuring that they would comply with the policy and acknowledging that any further violations could lead to a suspension of the Chapter’s Charter.  Within a short period of time after signing such statements, another significant violation of the policy occurred.  After asking for and receiving a report confirming the facts, General Council acted to suspend Pennsylvania Theta Chapter’s Charter.  At that point, all of the members of the Chapter were made alumni members.  Those alumni were advised that they could no longer function as a Chapter.

In spite of that, the Chapter continued to function, holding events, recruiting new members and even conducting “an informal” initiation.  They also permitted the newly “initiated” members to sign the Bond Book, which contains the Phi Delta Theta Bond and the original signatures of all of the properly initiated members of the Pennsylvania Theta Chapter going back more than 100 years.  When the continued operations were documented and confirmed, General Council then moved to expel all of those individuals who had been members of the Chapter at the time the Chapter was suspended.  The Charter was suspended in December 2007.  The dismissal of the members occurred in March of 2008.

With the General Convention of Phi Delta Theta just weeks away, six former members of the Chapter sued Phi Delta Theta and sought an immediate court hearing at which they requested preliminary injunctions reinstating their membership and lifting the suspension of the Charter.  Following a two-day hearing, Judge Pamela Ruest issued a decision denying the preliminary injunctions, which was announced two days before the Phi Delta Theta convention began.

The Plaintiffs had argued that the Alcohol-Free Housing Policy was illegal and void.  They claimed that only the Phi Delta Theta General Convention could adopt the statutes and laws for the Fraternity, and that the right of the General Council, the governing body, to adopt policy did not extend to something like the Alcohol-Free Housing Policy.  The Judge disagreed with the Plaintiffs saying:

 “. . . the General Council had the authority to establish policies for the Fraternity, including the Alcohol-Free Housing Policy.  The constitution of Phi Delta Theta, Article III Section 7, provides that the General Council has the authority and responsibility to adopt policies ‘to promote the general welfare of the Fraternity.’  Promulgating a risk-management policy is part of this authority and responsibility.  The Alcohol-Free Housing Policy is an integral part of the fraternity’s Risk Management Policy.  The Alcohol-Free Housing Policy was adopted by the General Council in 1997.  It became effective Fraternity-wide in 2000.  At the 1998 General Convention, a resolution was passed that acknowledged and endorsed the Policy.”

The Plaintiffs had also argued that they and the Chapter had not been afforded due process when the disciplinary decisions were made to suspend the Chapter and later to expel the individuals as members.

In each instance, however, before the General Council acted, they gave notice that they were considering disciplinary action and asked for comment.  In both the case of Chapter suspension and the expulsion of the member, the underlying facts were admitted in the responses provided to the General Council by the Chapter President and/or members.  Judge Ruest recognized that courts refrain from injecting themselves into the internal disciplinary affairs of private social organizations:

 “Private organizations are vested with broad discretion when making internal disciplinary decisions, and if such decisions are ‘made honestly and in good faith, [they] will not be reviewed by the courts’ on their merits.”  (Quoting a prior Pennsylvania case.)

The court went on to say that:

 “Plaintiffs were afforded notice and an opportunity to be heard.  After five violations over a two-year period, Phi Delta Theta issued a ‘show cause’ letter to Pennsylvania Theta Chapter.  As part of their response, all members of Pennsylvania Theta were required to acknowledge an affidavit reflecting their commitment to abide by the Alcohol-Free Housing Policy and their understanding that any future violations of the Policy could lead to the suspension of the Chapter’s charter and/or expulsion of the individual members.  Six weeks after submitting their response to the ‘show cause’ letter, the Chapter again violated the Alcohol-Free Housing Policy.”

The decision is good news for fraternities that find it necessary to take disciplinary action.  It is critically important that such actions be taken in full compliance with the rules and procedures of the organization and that those rules provide basic fundamental fairness, notice and the opportunity to be heard, before disciplinary action is taken.  If that is done, courts will almost never second guess the merits of such disciplinary decisions.²

¹   Some men’s organizations do have restrictions on alcoholic beverages on their property, but not complete bans.  Many women’s fraternities and sororities, on the other hand, have long had such prohibitions.

²   See Thomas et al. v. Phi Delta Theta Fraternity, Centre County, Pennsylvania Court of Common Pleas Case No. 2008-1256.  Email the editor of Fraternal Law for a copy of the decision at dmccarthy@manleyburke