SUIT FOR FREEDOM AT HAMILTON COLLEGE

Robert E. Manley, Manley & Burke

Hamilton College has been sued again.¹ The Plaintiffs in that their contractual rights to freedom of expression, freedom of association, and right to be recognized have been violated by the college. This time the suit is by Delta Kappa Epsilon International, Inc., the Tau Chapter at Hamilton College, Michael Peroni, the Chapter’s President, and others.

The fraternity was thrown off campus because it held a party in which nude female dancers performed and alcohol was served. The fraternity had a party permit for the event in a university room. Campus police responded to a noise complaint. Campus police observed what was happening and did nothing but instruct the person at the party to reduce the volume of their noise.

Later, the college sent a memorandum to the entire college community announcing  that Delta  Kappa Ep­silon had lost its recognition.

[When students come to Hamilton College, they do so with the reasonable expectation that their civil rights of free expression and free association are assured them under the provisions of the college charter.]

Hamilton College is a private institution. Normally, protection under the First Amendment of the United States Constitution for freedom of expression and freedom of association would not bind a private institution. Hamilton College’s state charter issued in 1812 gives rule-making authority to the Board of Trustees of Hamilton College “provided that no ordinance, rule, or order shall be repugnant to the laws of this State or the laws of the United States.”

Numerous cases have held that nude dancing is a protected means of expression under the First Amendment of the United States Constitution. The New York Constitution in Article VIII states “every person may speak  freely, write,  and  publish  his sentiments on all subjects  * *  * and no law shall be  passed  to  restrain or abridge the liberty of speech or the press.”

The lawsuit uses the provision of the 1812 Charter of Hamilton College to incorporate all the protections of the First Amendment of the United States Supreme Court of Article VIII of the New York State Constitution, and of the Federal Civil Rights Laws, found in Title 42 of the Section 1983, United States Code. When students come to Hamilton college, they do so with the reasonable expectation that their civil rights of free expression and free association are assured them under the provisions of the college charter.

Charter provisions like this can incorporate by reference constitutional protections that otherwise would not apply.

The fraternity also claims that the regulations under which they were expelled from campus were vague. The fraternity asserts that there was an arbitrary classification because there have been organized academic exercises sponsored by the Office of the President, the Dean of Students, and the Office of Residential Life including programs that expressly deal with homosexual behavior, sadomasochistic behavior, diversity of love styles, female impersonation, leather sex, and “different love styles.” An assertion in the complaint is that whatever the fraternity did at its party is consistent with the standards on the Hamilton College Campus.

The new Hamilton College case has the prospect of making important law for the Greek movement and being instructive to college administrators.

The governing documents of many private colleges contain provisions that appear to ensure freedom of expression and freedom of association. These governing documents can make constitutional rights enforceable, even though the college is not a government agency.

The fraternity is also raising issues of the vagueness of the college regulations. New York is a leading state in defining impermissible vagueness in regulations. A regulation that imposes sanctions must be sufficiently clear to give the ordinary person notice of what standard of conduct he must follow in order  to  be  valid. People v. O’Gorman, 274 N.Y. 284. Justice Oliver Wendell Holmes in his classic book, The Common Law (p. 50) states “a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for the community to bear.”

If the allegations of the fraternity about officially sponsored activities that appear to feature unusual sex practices are correct, the college may be flying in the face of the admonition of Justice  Holmes. Courts  are  inclined to follow the writings of Justice Holmes.

¹ The U.S. Court of Appeals recently held that four fraternities could proceed in an antitrust suit against Hamilton College. Sec Fraternal Law No. 62 Nov. 1997.