TIME TO THROW OUT A MEMBER?

Robert E. Manley, Manley & Burke

Spring is coming. With it will come the loss of patience with the disruptive chapter member. When a chapter loses patience with its disruptive member, the chapter sometimes decides that it is time to throw out the member.

When it is time for expulsion, it is time to be legally careful What are the steps that need to he taken?

[When a chapter loses patience with its disruptive member, the chapter sometimes decides that it is time to throw out the member.]

First, the fraternity or the chapter must have rules that are well-known to the members. Generally, courts will not second-guess a private organization on the content of its rules, as long as they are reasonably related to the purpose of the organization. The important thing is that the rules be clear and promulgated.

If a member breaks a rule, then someone must bring an accusation against that member. When the accusation has been lodged, it is up to the chapter to follow the relevant disciplinary procedures to deal with that charge.

Courts are not likely to second-guess the expulsion of a member, unless the fraternity fails to give that member due process of law. If a chapter does fail to give due process, a court may order a new hearing that affords due process.

What is due process? How docs due process apply to a fraternity expulsion hearing?

The answer is simple, but across the country chapters are having difficulty following the fundamental rules of due process.

The elements are as follows:

• The accused must be given clear notice (preferably in writing) of the rule violation of which the member has been accused.
• The member  must be given notice of a time and place of a hearing.
• At the hearing, the decision maker(s) must be fair and
• At the hearing, the accused must be able to be present when the accuser is testifying about the alleged
• The accused must be able to cross-examine the accuser and any witnesses presented against the accused.
• The accused must be free to testify in self defense.
• The accused must be free to present witnesses for the defense.
• The accused must be free to make any reasonable argument as to why the accused is not guilty.

These seem like simple requirements, but they have proven very difficult for many chapters across the country. The difficulties sometimes flow from goodwill and fraternal concern.

For example, in an academic environment, it makes people uncomfortable for one fraternity member to accuse another in a due process hearing in the presence of the accused. This may make people uncomfortable, but it is an absolute essential of due process. Sometimes, college advisors will suggest that the accusations can be anonymous and the accused may not be allowed to face the accuser. This is simply wrong.

Some chapters have a series of counseling procedures for troublesome members. Occasionally, the same people involved in the counseling procedures end up being the judges. The dual roles of the judges deny the accused of fair and impartial judges.

Sometimes,  facts  and  records  of  accusations  made  at various counseling sessions are treated as though they were being made at the due process hearing. This is generally  a  poor practice. It deprives the accused of the right to cross-examine the accuser.

[If the elements of due process are followed and the facts show that a rule of the fraternity has been violated, it is most unlikely that a court will second-guess the expulsion.]

Before a chapter expels a member, it should review these elements of due process. If the elements of due process are followed and the facts show that a rule of the fraternity has been violated, it i unlikely that a court will second-guess the expulsion.

Some fraternities have a procedure for an appeal. There are many advantages to this. First, it assures that if the local chapter makes a mistake, there is an opportunity for it to he reviewed at a higher level. Second, it provides a cooling off period in case the expulsion was taken in a period of group anger. Third, it delays the time when a lawsuit is likely to occur, because no court is likely to take jurisdiction  as long as the appellate procedures have not been exhausted.

An interesting phenomenon is that it is very rare that a men’s fraternity is sued for wrongful expulsion. It is fairly common, on the other hand, that a women’s fraternity is sued for wrongful expulsion.

Is this difference in the frequency of the wrongful expulsion suit along sex lines caused because men arc  more careful about due process? Whatever the reason, wrongful expulsion suits seem to plague women’s fraternities and rarely affect men’s fraternities. In any event, the defense of these suits can be very expensive, even if they arc won. If no money damage claim is sought, the fraternities’ insurance earner may not pay the legal expense of defense.