SAM AND CHAPMAN U. SETTLE FIRST AMENDMENT DISPUTE

Tim Burke, Manley Burke, tburke@manleyburke.com

As reported in the November 2007 issue of Fraternal Law, Chapman University in California was recently threatened with litigation by the California Chapter of the American Civil Liberties Union (ACLU).  The complaint arose because a group of Chapman University students sought to organize a chapter of Sigma Alpha Mu (SAM) without recognition by the University.  SAM had been one of more than a dozen national fraternities that had sought recognition from the University, which was going to invite one group to start a new chapter on campus.

When SAM was not selected, those students desiring to organize a chapter on campus proceeded to do so anyway.  University officials responded by issuing a directive prohibiting their organizing activities from occurring on campus and threatened disciplinary sanctions even for wearing SAM letters on campus.  The ACLU viewed the University’s action as a violation of the First Amendment right to associate and right of free speech.

Rather than engage in litigation, the ACLU and the University entered into negotiations, ultimately reaching a resolution with an agreement executed by representatives of both sides in late November of 2007.  The agreement made it clear that neither party was admitting any wrongdoing and entered into the settlement in order to avoid the time and expense of litigation.  The agreement did not provide recognition to SAM, but it did affirm the right to wear their letters, congregate on campus, advertise in the student newspaper, post flyers on campus community bulletin boards, distribute flyers and rent tables in front of a campus building traditionally used to recruit new members.  These rights were also affirmed for other non-recognized student groups associated with campus.

SAM was required to disclaim on its material any recognition or sponsorship by the University, provided the University has a similar policy requiring the same from all other student groups.  SAM was prohibited, as are recognized groups, from leafleting during the two weeks preceding Rush Week and during Rush Week.  SAM and student members of unrecognized student groups were also prohibited from tabling during Rush Week.

Hector Villagra, the Director of the ACLU’s Orange County Office said “we are gratified that we could work with Chapman Administrators and SAM members to develop a settlement that preserves the free speech rights of students while supporting the University’s obligation to maintain strong policies and procedures that are fair to and protective of all its students.”  Mary Platt, Chapman’s Director of Communications and Media Relations, said:  “Chapman University, with its long history of dedication to issues of social justice, is ever mindful of fostering the fundamental values of Freedom of Speech, inquiry and association among our students.  This agreement, in essence, makes clear that members of unofficial student organizations can promote themselves on campus, consistent with our long-standing commitment to students’ rights.”

Chapman University is a private university that would not normally be subject to enforceable First Amendment Freedom of Association rights directly under the Constitution (under certain circumstances, they could be under a contract theory).  However, because Chapman is located in California, the provisions of the California Constitution and codified law apply.  The California Constitution, in Article I, Section 2, states:

 SEC. 2. (a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.  A law may not restrain or abridge liberty of speech or press.

The Leonard Law, Cal. Educ. Section 94637(a), makes it clear, stating:

94367.(a) No private postsecondary education institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.

Students at California private colleges are better protected than those in other states.  Indeed, the California Leonard Law provides protection for students at private colleges that no other states provide.

¹  John Genin, an advisor for Phi Delta Theta at Mississippi State University, suggested this topic.  Thank you, John.  As always, we welcome both article ideas and, when appropriate, article submissions.