THE NIC AND NPC FILE BRIEF IN SUPPORT OF SINGLE-SEX ORGANIZATIONS

Dan McCarthy, Manley Burke

As previously reported in Fraternal Law, Alpha Epsilon Pi (“AEPi”) is fighting to protect the First Amendment Freedom of Association rights of its members at the City University of New York College of Staten Island (“CSI”).  Among other restrictions, CSI requires all student groups, including fraternities and sororities, to admit members of both sexes.  AEPi currently has a colony of approximately eighteen undergraduate men at CSI.  The University denied the colony’s application for official recognition, in part because the colony limits membership to males.  AEPi sued CSI in Federal District Court in New York, alleging that its colony is both an intimate and expressive association and is entitled to official recognition.  AEPi is seeking official recognition and an order preventing CSI from enforcing its single-sex policy.  AEPi’s suit contained numerous allegations of both federal and state law.  The court recently dismissed the state law claim, but the federal law claims remain.

The North-American Interfraternity Conference (“NIC”) and the National Panhellenic Conference (“NPC”) recently filed a joint amicus curiae brief in support of AEPi because of the magnitude of the interest at stake.  The NIC and NPC fear that if the Court upholds CSI’s single-sex policy, other public institutions may follow suit.  The result could be devastating to single-sex fraternities and sororities across the nation.  The following is a short summary of the NIC and NPC brief.

Purpose of the Brief

Men’s fraternal organizations formed the NIC in 1909, which currently has 64 member organizations, with 5,500 chapters located on approximately 800 campuses in the United States and Canada, with roughly 350,000 undergraduate members and 4,500,000 total active and alumni members.  Women’s fraternal organizations formed the NPC in 1902.  The NPC currently contains 26 member organizations, with 2,908 chapters on over 620 campuses, with approximately 232,500 undergraduate members and 3,600,000 total active and alumnae members.

If permitted to stand, CSI’s single-sex policy could potentially lead to the end of the Greek system as it currently exists in the United States.  Every member of the NIC permits only male members; similarly, every member of the NPC permits only female members.  CSI’s single-sex policy eviscerates the purpose and policies of every member of the NIC and NPC.  It is crucial for AEPi to prevail in this case so that other colleges and universities do not institute similar single-sex prohibitions.

That stated, what are the legal arguments?

Freedom of Association

Numerous articles previously appearing in this publication have discussed the two types of freedom of association: intimate association and expressive association.  Both associational rights center on the First Amendment and provide the right for individuals and groups to associate freely with others.

Intimate Association

The right of intimate association is the right of one to enter with others into close personal relationships without fear of government intrusion.  “Choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the state because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.”  Roberts v. United States Jaycees, 468 U.S. 608, 618 (1984).  In Roberts, the United States Supreme Court set out the attributes that intimate associations possess: “relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.  Id. at 620.  In the brief, the NIC and NPC argued that the AEPi colony, like most fraternities and sororities, qualifies as an intimate association.

Expressive Association

The Supreme Court has long recognized the right for individuals to associate with others for a variety of reasons, including political, social, economic, educational, religious, and cultural goals.  The Court has also acknowledged that freedom of association includes the freedom not to associate.  See Roberts and Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

The brief highlighted examples of the expressive nature of a handful of NIC and NPC organizations and focused on the particular expressive activities of AEPi.  AEPi maintains a unique emphasis on Jewish religion and culture.  The NIC and NPC argued that while most fraternities and sororities qualify as expressive associations, AEPi in particular qualifies because of its unique focus on Jewish issues.  The brief then detailed why fraternities and sororities possess the right to limit their memberships to members of a single-sex.

Right to Recognition 

Healy v. James, the landmark Supreme Court case involving the rights of student organizations, held that host colleges have a “heavy burden” to justify the denial of recognition of student organizations.  The NIC and NPC argued that CSI failed to overcome this heavy burden with sufficient justification for their prohibition of single-sex organizations, particularly in light of the historical role that fraternities and sororities have played in higher education.

Title IX

Title IX requires all universities receiving federal money to provide equal opportunities to male and female students.  Shortly after its passage in the early 1970s, the Department of Health, Education and Welfare attempted to apply Title IX to college fraternal organizations.  In response, Congress passed an amendment specifically excluding college fraternal organizations.  The sponsor of the amendment, Senator Birch Bayh, stated: “Fraternities and sororities have been a tradition in the country for over 200 years.  Greek organizations… must not be destroyed in a misdirected effort to apply Title IX.”  See Nancy S. Horton, Traditional Single-Sex Fraternities on College Campuses: Will They Survive the 1990s? 18 J.C. & U.L. 419 (1992).  Senator Talmadge of Georgia noted that Title IX “was never meant to force groups such as Greek-letter societies and the Girl Scouts to abandon their practice of limiting membership to individuals of the same sex.”  See id.

Though CSI did not argue that Title IX was the driving force behind its prohibition of single-sex organizations, the policy is as equally misdirected as the previous attempt to apply Title IX to fraternities and sororities.  Nearly 30 years ago the United States Congress acknowledged the important role single-sex fraternal organizations play on college campuses.  The same fraternal organizations protected by the 1974 amendment to Title IX play the same important role on college campuses today.  These same organizations must be similarly protected against misdirected attempts to limit their single-sex memberships.

Higher Education Amendment Act of 1998

In 1998, the Congress of the United States re-emphasized the associational rights of students on American college and University campuses.  Specifically, Congress declared:

It is the sense of Congress that no student attending an institution of higher education on a full- or part-time basis should, on the basis of participation in protected speech or protected association, be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction under any education program, activity, or division of the institution directly or indirectly receiving financial assistance under this Act, whether or not such program, activity, or division is sponsored or officially sanctioned by the institution.  20 U.S.C. §1011.

Congress defined “Protected Association” as “the joining, assembling, and residing with others that is protected under the First and Fourteenth Amendments to the Constitution, or would be protected if the institution of higher education were subject to those amendments.”  This provision bolsters the associational rights of students at colleges and universities across the country.  The NIC and NPC argued that AEPi’s colony at CSI is exactly the kind of organization Congress intended to protect with the Higher Education Amendment Act of 1998.

Conclusion

Single-sex collegiate fraternal organizations have existed and thrived on campuses throughout North America for over 200 years.  Collegiate fraternal organizations serve unique roles in the development of young men and women by creating brotherhoods and sisterhoods that foster leadership, promote academic achievement, and encourage civic and campus involvement through philanthropic activities.

Should CSI prevail, other colleges and university, both public and private, could attempt to prohibit single-sex membership organizations.  If successful, the membership of fraternities and sororities would be radically altered.  The briefing is now complete in the case, and AEPi is waiting to hear whether the court will hear oral argument.  Look for updates on this case in future issues of Fraternal Law.