Recent Developments: The Impact of Student Conduct Policies on Greek Letter Organizations and Members

Stephen Bernstein

Almost every university publishes a code of conduct which it expects students to follow as a condition of enrollment.  While these codes vary, common elements include expectations for student behavior, including conduct which may result in various degrees of discipline.

Some schools consider the student code to be guidelines.¹  Courts differ about the legal effect of codes. Some cases hold that when a student enrolls, and pays tuition and fees, the resulting relationship may reasonably be construed as contractual in nature, the terms of which are found in the catalog, handbook, and/or other guidelines supplied to the students.²  Other cases hold that a student handbook does not constitute a contract between a university and a student requiring strict compliance with every provision.³

Most codes contain a process covering how and when a student may be disciplined. Generally, where the code requires notice, a hearing, and provides the student with an opportunity to present evidence, the disciplinary proceeding is considered “quasi- judicial”.⁴  Thus, the rules and enforcement of student codes often present important legal issues, and may impact related civil or criminal cases.

1. Use of Student Codes to Control Off Campus Conduct.

Some codes purport to extend their reach to cover off campus student conduct, such as membership in unrecognized fraternities. While individual students could still face consequences, if the university doesn’t recognize a group, it loses a lot of its ability to regulate and discipline the organization.⁵ Ignoring or disavowing unrecognized groups has not insulated universities from liability claims.⁶  Thus, a growing number of schools now seek to eliminate unrecognized Greek organizations by bringing disciplinary proceedings against members, even where no specific incidents or misbehavior are alleged to have occurred; i.e., membership itself is the violation.

Many university websites now include statements regarding unrecognized organizations.  The University of Connecticut website warns that “… Any operation of these groups is considered underground activity, is against university policy, and is not sanctioned by the Office of Fraternity and Sorority Life. Therefore, students should carefully consider their potential student conduct record before associating with an unrecognized group.”

Amherst College, a private school, recently reaffirmed a 1984 resolution that “… student participation in off-campus fraternities and sororities, and fraternity-like and sorority-like organizations, is prohibited. Violations will be subject to discipline, including suspension or expulsion from the College.” The Trustees concluded   “…The College has no authority with respect to underground fraternities. It knows little about their membership or their activities… Amherst students can and do—and should—freely participate in many off-campus pursuits, and in most cases these pursuits are transparent and have no bearing on the College, nor does the College need or wish to venture an opinion. In this instance, however, the activity reaches directly into College life…⁷

Public universities have been recognized as instrumentalities of the state, thereby granting constitutional protection to students.⁸  In certain circumstances, the constitutional interests of the student must yield to a school’s need to maintain order and to discipline when necessary to assure a safe school environment conducive to learning.⁹  Likewise, private universities may not expel students in an arbitrary manner.¹⁰

A student does not surrender his civil rights upon enrollment. Certain uses of student codes have been struck down for violating students’ free speech rights. In Tinker v. Des Moines Independent Community School District,¹¹ the Supreme Court held that the district could not restrict symbolic speech that did not cause “undue interruptions” of school activities. The Court held that “schools may not be enclaves of totalitarianism”.  School officials do not possess absolute authority over their students, who retain … fundamental rights which the State must respect…”

Courts have since limited the applicability of Tinker but have not departed from the core holding extending free speech rights to students. In the years following Tinker, the courts have upheld disciplinary action taken against students’ speech, rather than expanding students’ speech rights.¹²

Actual occurrences, such as hazing, sexual misconduct, alcohol, or drug use may be “undue interruptions” of school activities, which justify limiting students’ constitutional rights. Some schools threaten “never” to recognize a chapter which has operated off campus. Consequently, national organizations must decide with increasing frequency, whether to support a good off-campus group, unfairly denied university recognition, while students are pressured to disaffiliate and threatened with discipline based on membership alone.

2. Good Samaritan Policies.

Some victims of campus sexual assault turn to the criminal justice system; while others look to their schools for help or recourse. Most student codes include sexual misconduct policies. While policies vary widely, all have common elements of protecting the safety and welfare of students,¹³ and ensuring university compliance with federal reporting laws.¹⁴  Most codes list local law enforcement agencies, university departments, and community support organizations where reports of sexual misconduct can be made.¹⁵  To encourage reporting of incidents without fear of legal penalties, many codes include “Good Samaritan” policies, which give amnesty to victims or witnesses, including student organizations, for alcohol and minor drug violations.

Good Samaritan policies require universities to strike a difficult balance between encouraging students to report sexual violence, in exchange for ignoring otherwise actionable misconduct. Policies vary as to who may receive amnesty. Some codes offer amnesty only to “victims,”¹⁶ others include “third party witnesses,”¹⁷ “students”¹⁸ and “student organizations.”¹⁹ Some policies require student organizations to seek immediate medical assistance for their members or guests when any potential health risk is observed.²⁰  Some university codes require that witnesses report a sexual assault. Failure to do so is itself a violation.²¹  Amnesty is sometimes limited to persons making reports during emergency medical situations.²²  Some universities may require the reporter to complete educational programming or other treatment as a condition of amnesty.²³

Likewise, some state laws require that witnesses to a sexual assault call the police. Failure to do so may be a criminal offense. Thus, while a university may have a Good Samaritan policy, reporting to the school alone may not satisfy the reporter’s legal obligations, nor provide protection from criminal prosecution.²⁴

There are times when the local police and a school may be simultaneously pursuing a case. Under federal law, when a school knows or reasonably should know that one of its students has been sexually assaulted, it is obligated to act. A criminal investigation does not relieve a school of its independent obligation to conduct its own investigation, nor may a school wait for a criminal case to conclude to proceed.²⁵

Absent parallel state Good Samaritan laws, criminal investigations and other police action may still occur at the discretion of the law enforcement agency responding to the incident.²⁶  Even where a university Good Samaritan policy exists, the reporter is only protected from discipline under the student code. Reporters may be faced with difficult, immediate decisions requiring admissions to obtain protections provided by a university Good Samaritan policy, but which might be used against them in a criminal prosecution.

Statements by victims may be privileged or confidential in some circumstances, such as when made to medical providers, counselors, religious or legal advisors. Typically, statements made by third parties are not privileged, although many codes provide for anonymous reporting.²⁷ Nevertheless, all reporters should anticipate that they will be interviewed by law enforcement. If criminal charges or a civil lawsuit are brought, reporters may be contacted by investigators, deposed, and subpoenaed to testify in Court.

Victims and third party reporters may face attacks on their character, credibility and motive.²⁸  The most common defense in sexual misconduct cases is “consent.” Definitions of “consent” are often the product of campus studies and forums, and vary widely in student codes and criminal laws.²⁹  It is a violation under some codes to engage in sexual activity with an impaired person, who is deemed conclusively incapable of giving consent.³⁰

In summary, Good Samaritan policies offer reporters some, but not complete relief from alcohol or drug related offenses.  Where circumstances permit, reporters should still seek legal advice before admitting to illegal alcohol or drug use.  Student organizations and members would be well advised to familiarize themselves with their rights and responsibilities under their university code, and local law.

Stephen Bernstein is the General Counsel to the Alpha Epsilon Pi International Fraternity. He is also a past National President of Alpha Epsilon PI.

1 The University of Rhode Island Student Handbook 2012-2014 provides: “These standards are written to give students general notice of expected and prohibited conduct. The regulations should be read broadly and are not designed to define misconduct in exhaustive terms.”

2 Prince v. Kent State Univ., 10th Dist. No. 11AP-493, 2012-Ohio-1016, Tate v. Owens State Community College, 10th Dist. No. 10AP-1201, 2011-Ohio-3452, Lewis v. Cleveland State Univ., 10th Dist. No. 10AP-606, 2011-Ohio-1192.

3 Rollins v. Cardinal Stritch Univ., 626 N.W.2d 464 (Minn.Ct.App. 2001), Ryan v. Hofstra University, 67 Misc.2d 651, 324 N.Y.S.2d 964 (1971).

4 Savoy v. University of Akron, 15 N.E.3d 430, 2014-Ohio-3043 (Ohio App. 10 Dist. 2014).

5 Illegal Fraternities May Have More Power Than Colleges”, The Huffington Post, By Nina Friend, Posted:06/17/2014 6:12 pm EDT.

6 The family of a University of Albany student who died after drinking an excessive amount of alcohol at an off campus fraternity party has served the state attorney general’s office a Notice of Intent to file a  lawsuit against the university.  The fraternity was using the name of Zeta Beta Tau Fraternity without authority of the national organization See http://www.albanystudentpress.net/big-brothers-at-underground-zbt/;   http://www.topix.com/wire/colleges/suny-albany.

7 See Amherst College, Board Statement and Resolution on Fraternities, May 6, 2014. In the intervening years, since passing the 1984 resolution, several “underground fraternities” have existed at Amherst. They have had “non-status” as official student organizations, but Amherst “…never expressed itself with a single mind about them, creating a condition of ambiguity.”

8 Miller v. Long Island Univ., 380 N.Y.S.2d 917 (N.Y. App. Div. 1976); Smith v. Univ. of Tenn., 300 F. Supp. 777 (E.D. Tenn. See also 89 Nebraska L. Rev.634. “Enforcement of Law Schools’ Non-Academic Honor Codes: A Necessary Step Towards Professionalism?”

9 Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

10 Rollins v. Cardinal Stritch Univ., Ryan v. Hofstra University, supra.

11 393 U.S. 503 (1969).

12 See Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 502 F.3d 136 (2nd Cir.2007), Pi Lambda Phi Fraternity, Inc. v. University of Pittsburgh, 229 F.3d 435, 439 (3rd Cir. 2000).

13 See, for example, “University of Michigan Student Sexual Misconduct Policy.”

14 See Title IX , 20 U.S.C. §§ 1681-1688, Clery Act , 20 USC § 1092(f), Campus Sexual Violence Elimination (SaVE) Act.

15 See, for example, Syracuse University Policies, “Sexual Activity, Non Consensual; LeMoyne College, “Sexual Misconduct.”

16 See, for example, Oregon State University, “Student Conduct and Community Standards, Victim Support and Reporting”; see also, Safer Students Active for Ending Rape, “What Makes A Better Sexual Assault Policy?”

17 See, for example, Amherst College, “Sexual Misconduct Policy”;  University of Evansville,” Policy Prohibiting Sexual Misconduct”. 

18 See, for examples, SUNY “Uniform Sexual Assault Policy”; Michigan State University “Relationship Violence & Sexual Misconduct Policy.”

19 See, for example, University at Albany, State University of New York, “Good Samaritan 911 Policy”, University of Arizona, Residence Life, “Good Samaritan Campaign.”

20 See, for example, The Kutztown University, “ Good Samaritan Policy for Alcohol & Other Drug Incidents.”

21 See University of Colorado, “Sexual Harassment Policy and Procedures.”

22 See, for example, Loyola University Chicago,” Good Samaritan Policy.”

23 See, for example, “Good Samaritan Provision, University of Northern Iowa Student Conduct Code.”

24 For example, The University of Rhode Island Handbook provides: “Medical Amnesty. Actions taken to preserve life and/or safety of students in emergency situations shall not expose students to conduct charges regarding alcohol or drug consumption if that student’s role in the situation is to call for help or emergency services. However, Rhode Island General Laws, 11-37-3.1 provides, “Any person, other than the victim, who knows or has reason to know that a first degree sexual assault or attempted first degree sexual assault is taking place in his or her presence shall immediately notify the state police or the police department of the city or town in which the assault or attempted assault is taking place of the crime.”

25 See” NOT ALONE-The First Report of the White House Task Force to Protect Students From Sexual Assault “, April 2014.

26 See Loyola Marymount University, “Good Samaritan and Self-Reporting.”

27 See, for example, “ SEXUAL MISCONDUCT POLICIES AND PROCEDURES DOCUMENT FOR FACULTY, STAFF, AND STUDENTS”, University of Wyoming, pp. 5-7.

28 False reporting is also often included as a violation of the code. See, for example, Swarthmore College, “Student Handbook”, Michigan State University “Relationship Violence & Sexual Misconduct Policy”; Case Western Reserve University, “Sexual Assault Policy.”

29 Compare, for examples, “Yale Sexual Misconduct Policies and Related Definitions”; The Ohio State University, Sexual Violence : “OSU’s Sexual Misconduct Policy”, Antioch College, “Sexual Offense Prevention Policy”, see also “ The Diamondback, University of Maryland Independent Student Newspaper, “Consent Officially Defined in Sexual Misconduct Policy”, Posted: Monday, September 16, 2013, Updated, Wed Sep 18, 2013.

30 See Georgetown University, “Sexual Misconduct and Sexual Assault.”