UNIVERSITY HIT WITH DAMAGES FOR USE OF ILLEGAL RECORDING

James Harvey

The use of what a court described as “strong-arm tactics” and an illegal recording during university disciplinary proceedings has resulted in an award of more than $140,000 in damages to a fraternity.  As part of the award, punitive damages were levied against a university official personally.  This extraordinary case tells a story of abuse of power, abuse that backfired and ended in an unprecedented award of damages.

Recording Leads to Fraternity’s Suspension

In fall 2001, a former pledge of the Phi Delta Theta fraternity at the University of Iowa secretly planted a voice-activated recording device in the basement of the fraternity house.  The former pledge later retrieved his device and took it to Philip Jones, the University’s Vice President for Student Services, and claimed that the device had captured evidence of hazing activities and alcohol violations.

The fraternity’s alumni investigated the claims, and had a number of discussions with the University aimed at resolving the matter informally.  The alumni admitted that they had discovered an alcohol policy violation, but denied that any form of hazing had occurred and denied that the recording was authentic.  Vice President Jones decided that the recording did show evidence of hazing; he proposed that the fraternity accept a one-year suspension of its recognition beginning the next academic term, conditioned on the fraternity giving up its right to a hearing.  When the fraternity refused to waive the hearing, Vice President Jones immediately revoked the fraternity’s recognition indefinitely.  As a result, Phi Delta Theta could not participate in formal rush activities and intramural sports, or use campus facilities.

In February 2002, the fraternity requested an evidentiary hearing.  More than a year passed while the parties negotiated a settlement that would allow the fraternity to regain its recognition.  Just when it seemed that an agreement had been reached, Vice President Jones added the requirement that Phi Delta Theta admit to the original hazing charge.  The fraternity refused, and negotiations collapsed.

An administrative hearing was finally held in August 2003.  The illicit recording was the sole evidence against the fraternity, and despite no proof of authenticity, it was admitted over the fraternity’s objections.  The hearing officer found Phi Delta Theta guilty of hazing, based solely on the recording, and continued the indefinite suspension of the fraternity’s recognition.

The fraternity appealed the decision through the University’s administrative system.  Early in that process, the fraternity’s attorneys pointed out that Iowa law prohibits use of intercepted communications in any legal or administrative proceeding.  And there are both civil and criminal penalties for such use: Iowa Code § 808B makes use of such a recording a Class D felony, and authorizes civil damages of not less than $100 per day, as well as punitive damages and attorneys’ fees, against anyone who uses such a recording.  In November 2003, on the advice of the University’s counsel, Vice President Jones dismissed the hazing charge because the recording had been used illegally.  However, Jones continued the indefinite suspension of recognition, now based solely on the admitted alcohol violation.

The case finally reached the desk of University President David Skorton.  On June 29, 2004, President Skorton declared that there had been “sufficient passage of time to serve the interest of the university in the punishment of this organization.”  He did not address the claim that the suspension had been improper in the first place, or the use of illegally obtained evidence.  President Skorton also conditioned the formal re-recognition of the fraternity on the approval of a number of documents and reports.  Objecting to the “conditional” lifting of the suspension and seeking complete exoneration, Phi Delta Theta took its appeal up another level, to the Iowa Board of Regents.  On July 29, 2004, a few days before the matter would have come before the Regents, President Skorton lifted the suspension unconditionally.

The Suspension Leads to Litigation

From the fraternity’s point of view, the restoration of its recognized status did not end the matter.  During the more than two years of the suspension, the fraternity’s membership had declined by more than 50%, and its continued existence was in question.  The chapter and its alumni house corporation had lost tens of thousands of dollars in dues and rental income.  The chapter and its alumni had also incurred over $20,000 in attorneys’ fees in fighting to regain the chapter’s recognized status.

On February 4, 2005, the chapter and its alumni house corporation filed suit against the University and Vice President Jones in Iowa District Court.¹ The case was tried on September 6 and 7, 2006.  Both sides presented testimony and documents, and the trial judge took the matter under submission

The Court’s Ruling

On January 24, 2007, the trial court ruled in favor of the fraternity.² In a detailed 17-page ruling, Judge Mitchell E. Turner found that the University and Vice President Jones expressly “used” the illegal recording against the chapter, in violation of Iowa law, by improperly suspending its recognition from November 19, 2001 to November 21, 2003.  The court also found that even after the University dismissed the hazing charge on the advice of its attorneys, Vice President Jones continued to use the recording against the fraternity “by imposing disproportionately harsh sanctions under the pretext of a single alcohol violation” and this continued until President Skorton finally lifted the suspension on July 29, 2004.  The court dismissed as “ludicrous” the University’s claim that the latter period of suspension was not based on the illegal recording.

The court reserved its harshest words for Vice President Jones, calling portions of his trial testimony “not credible” and “disingenuous at best.”  The court found that Jones had used the initial indefinite suspension as a “strong-arm tactic” to discourage any appeal of his decision.  The court held that Jones’ “stubborn, obstinate, and willful conduct” in continuing to use the recording, even after he learned that such use was illegal, justified an award of punitive damages against him personally.

The court ordered the University and Jones to pay damages of $98,300 to the chapter (983 days at $100 per day), plus 7% pre-judgment interest.  The court ordered the University and Jones to pay the chapter $24,444.18 for attorneys’ fees it incurred in the administrative proceedings.  The court also ordered Jones, individually, to pay $5,000 in punitive damages to the chapter, plus 7% pre-judgment interest.  The chapter’s attorneys will also be entitled to an additional award of fees from the University and Jones for their handling of the lawsuit.  The total damages awarded to the chapter are more than $141,000.

Unfortunately, the victory came too late to do the chapter any good: Just before the lawsuit came to trial, Phi Delta Theta’s General Headquarters suspended its Iowa chapter’s charter because of continued membership decline.  Judge Turner found that the actions of the University and Vice President Jones were a significant cause in the decline and ultimate failure of the chapter.

The University has announced it will appeal the ruling.

Mr. Harvey is an attorney in Orange County, California.  He is a member of Phi Delta Theta and the NIC Legal Advocacy Committee.

1 Phi Delta Theta House Assn. and Iowa Beta Chapter of Phi Delta Theta v. State of Iowa, et al., Iowa District Court (Johnson County) Case No. LACV-65500.

2 The court denied the claim of the alumni house corporation, holding that it was not directly damaged by the use of the illegal recording.  The damages awarded were in favor of the undergraduate chapter only.