SCAVENGER HUNT TO INFAMY

Timothy M. Burke, Manley & Burke

The Zeta Beta Tau Chapter at  Indiana  University  is in hot water because of  what  was  at  best  sophomoric  humor run amuck and was attacked  as  out-and-out  racism  and sexism by some. The written instructions (many  of  which were offensive) to a scavenger hunt organized by the chapter raise once again the question of how far a public institution can go in punishing an organization for what is essentially speech.

[Indiana is one of at least 38 states which specifically makes hazing a crime.]

The chapter’s scavenger hunt for pledges contained a list of items to be found that was liberally laced with sexually oriented materials, and requirements for pictures that included items such as “your class and a black guy,” “any funny-lookin’ Mexican,” ”any midget (black midget, super-extra credit):’ The scavenger hunt may have constituted hazing since it was a pledge activity. It targeted one of the African-American fraternities on campus, and encouraged illegal conduct such as stealing street signs and urinating in public. In fact, nine of the fraternity’s pledges were charged with criminal wrongdoing.

The response on campus and off was predictable. The Indianapolis Star in an editorial described the incident  as “an ugly reminder that when group fun gets out of control, tolerance and respect for human rights can quickly he forgotten.”

Ultimately, the university’s Dean of Students issued a decision expelling the fraternity from campus for an indefinite period of time. The Fraternity and Sorority Judicial Board recommended that  the  chapter  be  suspended through January l, 2000, with a year of probation tacked on after that.

The Dean was reported to have explained his decision saying “I was struck by the nature of the incident, the hazing and the violation of the law, but also the fact that the organization has a record of three prior offenses in the last four years.” The suspension means that the chapter immediately loses its standing on campus as a student organization and the rights and privileges that go with it.  At the end of this academic year, the chapter must vacate  its house. The chapter’s symbols on the house and in the yard will be removed.

Indiana is one of at least 18 states which specifically makes hazing a crime. Clearly: stealing signs, defacing private property, and engaging in indecent exposure constitute crimes in most states. There is little doubt that a state university can punish a social organization which organizes criminal conduct.

Even Healy v. James (408 U.S. 169, 1972), the leading United States Supreme Court case on the right of student organizations to organize and be recognized, supports the fact that a public university may control the illegal conduct of its students and student organizations. Thus,  to  the extent Indiana University’s punishment of the fraternity is based on the illegal conduct, that punishment is likely to be upheld by any reviewing court.

On the other hand: if the conduct of the fraternity  had not included hazing and other illegal conduct. there is a serious question as to whether or not the public university involved could constitutionally punish the chapter for speech conduct even if it was sexist or racist Over the last decade, any number of institutions of higher education, both public and private, have adopted speech conduct codes aimed at regulating offensive speech. In virtually every instance where those codes have been challenged, typically following an effort by the college to discipline the student organization guilty of offensive speech, the university has lost. Occidental College’s attempt to punish a fraternity for the publication of a ribald limerick, the University of California Riverside’s effort to punish a fraternity for a “south of the border” party t-shirt containing a character which a Latino student group found offensive, and George Mason’s effort to punish Sigma Chi for  an  ugly  woman contest arc just a few examples. The United States Supreme Court made it clear in RAV v. City of St. Paul, 505 U.S. 377 (1992) that the  “First Amendment  does  not  permit  …  fa state instrumentality] to impose special prohibitions on those speakers who express views on disfavored subjects.” Thus, if the ZBT scavenger hunt instructions had not included illegal conduct but had included racially-offensive comments, in all likelihood, the university could not successfully punish the chapter.

On  the  other hand,  the  fraternity itself, at  the   national level, may have much more flexibility to deal with the offensive speech and conduct by its chapter and members. Many fraternities and sororities have broad language in their conduct codes which allow for action to be taken against individuals and chapters who engage in conduct unbecoming to the fraternity. A private social organization is not limited by the First Amendment rights of its members. Punishment imposed by a private organization on its members will generally be upheld by the courts so long as the social organization has followed its own rules.

[Over the last decade, any number of institutions of higher education, both public and private, have adopted speech conduct codes aimed at regulating offensive speech.]

No doubt, both the chapter and national officers of ZBT wish that this event had never occurred. The chapter president apologized effusively to many organizations on campus, but the damage was done and the punishment imposed.

National officials of all fraternities and sororities would do well to publicize this incident to their members. It is an outstanding example of the consequences of thoughtless, hurtful conduct. It is unlikely that any of those involved in organizing the scavenger hunt gave any thought to the consequences of their conduct. Had they, it never would have occurred.