SECOND CIRCUIT REVERSES FREEDOM OF ASSOCIATION CASE

Daniel McCarthy, Manley Burke

The Second Circuit Court of Appeals recently handed down its decision in Chi Iota Colony of Alpha Epsilon Pi v. City University of New York,¹ one of the more important cases for Greeks in years.  The Court ruled against the fraternity and reversed and vacated the District Court’s preliminary injunction.²

The case stemmed from the College of Staten Island’s (“CSI”) policy restricting official recognition (and resulting benefits) to groups that do not discriminate on the basis of gender.  Alpha Epsilon Pi wanted to create a new chapter at CSI, but was denied official recognition from CSI because the Fraternity refused to admit female members.  CSI informed the Fraternity that “[m]embership in a chartered club must be open to all students.  Because your constitution appears to exclude females, it contravenes the College’s nondiscrimination policy.”  The Fraternity filed suit, alleging that CSI was violating the First and Fourteenth Amendments, and subsequently sought a preliminary injunction to force CSI to recognize it as an official organization and to prevent CSI from enforcing its prohibition on single-sex organizations.

The District Court, as reported in the September 2006 issue of Fraternal Law, granted the Fraternity’s motion for preliminary injunction.³ The District Court found that

the Fraternity’s size, purpose, recruiting practices, and attitude toward non-members qualified it as a protected intimate association, and that being forced to admit women would burden its associational rights.  The District Court also held that the intrusion on the Fraternity’s associational rights was subject to strict scrutiny, and rejected CSI’s contention that its policy was narrowly tailored to serve a compelling state interest.

CSI appealed to the Second Circuit Court of Appeals.  The Court of Appeals first vacated the injunction on June 20, 2007.  The Court then handed down its decision on September 13, 2007.

Court’s Must Do a Balancing Test

The Court first noted that the District Court applied a categorical approach when looking at whether CSI’s policy affected a constitutionally protected liberty: “[e]ither the policy affected a constitutionally protected liberty or it did not.”  The District Court ruled that if a policy intruded upon a group’s constitutionally protected interest, the policy was subject to strict scrutiny.  The Court of Appeals held that this was the wrong approach.  “[T]he appropriate question in evaluating an associational-interest claim is not—as the district court asked—whether the associational interest claimed receives constitutional protection.  Rather, the question is: Upon a balancing of all pertinent factors, do the state’s interests, and its means of achieving them, justify the state’s intrusion on the particular freedom?”

Intimate Association Factors

The Court then examined the factors relevant in the intimate association analysis: size, selectivity, purpose and exclusion of non-members.  On size, the Court noted that the Fraternity’s size limitation was “the product of circumstances, not a desire to maintain intimacy” and that its characteristics were similar to groups not found to be intimate associations.  The Court also refused to find that the Fraternity was highly selective because “a relatively high percentage of Jewish men at CSI who express an interest in the Fraternity are invited to join.”  On the purpose element, the Court found that the Fraternity’s purposes were “broad, public-minded goals that do not depend for their promotion on close-knit bonds.”  On the exclusion of non-members, the Court noted that some of the Fraternity’s activities take place only among its members.  However, the Court also noted that the Fraternity involved non-members in several crucial aspects of its existence, such as rush events and parties.

The Court also noted that the Fraternity desired to be part of the larger national AEPi organization, and that this desire hurt its intimate association claim.  “Association with AEPi would involve the members to some extent in activities of the national group and would thus dilute the intimacy of the Fraternity.  The Fraternity opposes admitting women at least in part because admitting them would make the Fraternity ineligible for this affiliation.  The Fraternity’s desire to associate itself with this national organization is in some tension with the purpose of the right to intimate association.”

The Court concluded that “[b]ased on its size, level of selectivity, purpose, and inclusion of non-members, the Fraternity lacks the characteristics that typify groups with strong claims to intimate association.”

Degree of Interference & State’s Interest

The Court then found that the policy only minimally interfered with the Fraternity’s associational rights because the Fraternity could exist off campus, it just could not use CSI resources or receive CSI funding.  The Court found that CSI’s interests in applying its non-discrimination policies were substantial, and that the policy was well tailored to achieve CSI’s stated interests of ending discrimination.

Accordingly, in conclusion, the Court found the Fraternity’s intimate association claims “relatively weak,” that CSI’s policy did not greatly burden the plaintiffs’ enjoyment of their associational interests, that the policy served several important state interests and that the policy was well tailored to effectuate those interests.

What Does the Future Hold?

This very important case is a set back for all Greeks.  The only other federal appellate decision concerning associational rights of Greek students was Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh.⁴  The Lambda Phi case dealt with a chapter with an unenviable record, presenting a less than sympathic case.  The AEPi decision is particularly disappointing because AEPi did not enter the case with a negative record and its emphasis on Jewish heritage and causes should have strengthened its First Amendment claims.  As of this writing, AEPi is evaluating its options.  (Gregory Hauser, who represented the Fraternity in this litigation, is the scheduled luncheon speaker at the 2007 Fraternal Law Conference and will discuss the case in length at that time.)

¹  Chi Iota Colony of Alpha Epsilon Pi v. City University of New York, –F.3d—(2^nd Cir. 2007), 2007 WL 2677037 (C.A.2 (N.Y.)).

²  The North-American Interfraternity Conference (NIC) and the National Panhellenic Conference filed amicus curiae briefs in support of AEPi in both the District Court and the Court of Appeals.  Manley Burke drafted and filed the briefs on behalf of the NIC and NPC.

³  Chi Iota Colony of Alpha Epsilon Pi v. City University of New York, U.S. D.Ct., Eastern Dist. Of N.Y., Case No. 05-CV-2919(DLI)(MDG).

⁴  Pi Lambda Phi Fraternity, Inc. v. University of Pittsburgh, 229 F.3d 435 (3d. Cir. 2000).