PRIVATE ACTION FOR FREEDOM OF ASSOCIATION

A new law that guarantees Freedom of Association to students on privately funded campuses that receive federal support may give rise to private lawsuits against colleges and universities. (Public Law 105-244.)

A substantial article published in the DEKE Quarlerly, and authored by David K Easlick, Jr., Executive Director of Delta Kappa Epsilon and a lawyer, reviews the arguments for the private cause of action by students against their college.

The following excerpts¹ give the gist of the argument in the article which reflects on a case involving a similar statute.

Student Coalition for Peace v. Lower Merion School Dist. for the School Directors, 776 F.2d 431 (3d Cir. 1985), applied prior decisions of the Supreme Court in finding a private cause of action under the Equal Access Act. The Act provides that it is unlawful for any public secondary school which receives federal financial assistance and which has a limited open forum to deny equal access to or discriminate against any students who wish to conduct a meeting within that forum on the basis of the religious, political, philosophical or other content of the speech at such meetings. 20 U.S.C. §4071. The court initially pointed out that although the Act also provided that the failure to abide by its terms should not affect federal financial assistance, there was no mechanism for enforcement set forth in  the statute. The court then pointed out  that the  language  and legislative  history  of  the Act, including statements by Congressmen that the Act was needed to “protect” and “guarantee” the rights of students, indicating that it was meant to extend to secondary school students the same protection which the Supreme Court had recently extended to college students concerning access to school facilities.

The  Student  Coalition noting that  the fact that Congress was silent on the existence of a private right of action did not foreclose the possibility of implying such a right.  The court also pointed out that the fact that there was no enforcement mechanism indicated that a private cause of action should be implied. It distinguished other Supreme Court decisions holding the private causes of action could not be implied under particular legislation noting that the legislation involved in those cases “invariably contained other express remedies.” “Conversely, the absence of any express or remedial provision suggests that Congress intended for us to imply an appropriate remedy. We would be extremely reluctant to conclude that Congress intended to create mandatory duties but no means of enforcing them.” Id. The court then found that the statute was enacted for the special benefit of students because it named them particularly. After referring to legislative history which indicated an intent to create a private cause of action, the court ruled that the “guiding purpose of Congress was to remedy what it saw as the unwarranted refusal of the lower federal courts to extend Supreme Court precedents to secondary schools.” Id. at 441. Given all these factors, the court held that a private cause of action existed under the Equal Access Act. Id.

The reasoning of Student Coalition is highly persuasive, if not controlling, in the instant case. As in that case, Section 112 was enacted by Congress to extend to students attending federally-assisted private universities the same rights of free speech and association afforded by Supreme Court precedent to public university students. In his floor remarks upon offering the amendment which became Section 112, Representative Livingston pointed out that colleges throughout the country are attacking the constitutional rights of students by banning fraternities and sororities. He then referred to the decision in Healy v. James, 408 U.S. 169 (1972), which established the constitutional right of university students to free association and reaffirmed the commitment to vigilantly protect constitutional freedoms on college campuses. The amendment was to “put Congress on record defending the rights of students who face expulsion and other severe consequences by daring to enjoy their most basic constitutional freedoms of speech and association, often off campus on their own time.” Representative Livingston concluded that “students attending private colleges have the right to enjoy the same freedoms of association and speech that all of us hold everywhere else as American citizens. We owe it to them and to all of those who sacrificed so much for those freedoms to adopt my amendment.”

These sentiments were seconded by Representative McKeon who stated that “colleges and universities which accept Federal funds under the Higher Education Act should not restrict their students’ rights to free speech or association, as protected under the First and Fourteenth Amendments to the Constitution.” Representative McKeon also referred to the efforts by some colleges and universities to restrict fraternal organization activities on campuses and remarked that the amendment “sends a strong signal to schools which participate in programs funded under the Higher Education Act that we intend for them to honor the rights of their students under the Constitution [.]”

The legislative history makes clear that Section 112 was enacted for the especial benefit of certain persons, i.e., college students engaged in fraternal organizations and other private associations. The remarks of Representatives Livingston and McKeon show that the legislation was intended as a response to the actions of some private schools to restrict the activities of or even ban fraternities and sororities at their schools.    The irony, of course, is that traditionally private colleges were the bastion of free speech.

Who would have ever thought that legislation would be required to force a private college to grant basic freedoms to its students. However, the need is readily seen in the Orwellian shrinking rights enumerated in the college catalog. For example, the Colgate University Catalog has provided for more than 25 years that “students on campus as of campus are subject to federal, state and local laws.” In 1974-92, this provision was followed by the following language “students surrender none of their constitutional rights as citizens of the United States by becoming members of the Colgate community.” … In 1993-94, the provision changed to “and enjoy the same constitutional protections against improper governmental actions as all other citizens.” … In 1997-98, only the “subject to” clause survived. Presumably, a Colgate student enjoys no constitutional protections!…

It is now past time to stand up for our principles. And, hopefully, the offending administrations, having fought the good fight and lost, will welcome the Greek system back to its accustomed place on the campus. However, for those who continue to resist, armed with our new statutory expansion of an old right, we will restore our right to exist and be heard. We now have the tools to stop the continuing erosion of rights through unconstitutional penalties ranging from expulsion to other offensive restrictions on association.

HIGHER EDUCATION CML RIGHTS LIABILITY

The amendments to the Higher Education Act of 1998 extend first amendment protection to students in all nongovernment   run  universities  or  colleges that receive federal aid. The United States Supreme Court inMaine; et al. v. Thiboutot, et al.,448U.S.1(1980},held that an action under the Federal Civil Rights Statute, 42 U.S.C.S. 1983, can be brought by any person who ·is deprived of his rights, privileges or immunities “secured by the Constitution and laws” of the United States. This holding has been widely interpreted to make it possible to use the civil rights laws to enforce any right protected by statutes of the United States, The doctrine was curtailed by the holding in Middlesex County Sewerage Authority, et al. v. National Sea Clammers Assoc,, 453 U.s (1981), which rejected the civil rights approach in statutory schemes that contain their own comprehensive system of enforcement Since the amendments of the Higher·Education Act appear to lack a comprehensive system of enforcement they may be enforceable by civil rights litigation. This would include the right to recover attorney’s fees :under 42 U.S.C.S. 1988. For a more complete discussion of this, see Robert E. Manley: “The Next Thirty Years of Civil Rights Litigation,” 13 Urban Lawyer 541 (1981).

COURT CLEARS FRATERNITY

An Iowa Court dismissed a case against Lambda Chi Alpha fraternity brought by the parents of Matthew Garofalo for wrongful death after their son died from alcohol poisoning. Matthew was 19 years old, too young to consume alcohol under Iowa law. He had twice as much alcohol in his blood as is necessary to be considered legally drunk in Iowa.

Matthew died on September 8, 1995 following a party at the fraternity house.

The Johnson County District Court dismissed the claim that the fraternity was negligent. The only defendant remaining in the case is University of Iowa Senior Chad Diehl who was Matthew’s “Big Brother” during the ceremony that preceded the party.

Matthew died after inhaling his own vomit. Alcohol intoxication led to the problem.

Originally this suit was against Lambda Chi Alpha National Fraternity, the local chapter and three fraternity members.

The University severed its ties with Lambda Chi Alpha and the fraternity is off campus until at least the year 2000. The University decided to ban alcohol at all fraternity houses commencing in 1999. The Greek system voluntarily went dry effective August 1, 1998.