UVA: A Clear Case for Due Process

Micah Kamrass, Manley Burke, mkamrass@manleyburke.com

During this school year, a troubling trend has expanded. At numerous schools across the country, both public and private, when an incident involving isolated segments of the Greek community occurred or was alleged to occur, the school responded by immediately suspending all Greek life activities.  Some of these suspensions of the entire community resulted from terrible tragedies like deaths or sexual assaults. Others from more minor, yet still serious allegations, such as insensitively yelling obscenities at activists. For a more complete review of these incidents, see the story in the November 2014 edition of Fraternal Law, entitled “Deaths, Assaults, and Injuries Lead to Campus-Wide Bans on Greek Life.”

In some of these instances, the Greek community has played an active role in the temporary suspension of activities. For example, as was reported in a Special December 2014 edition, at West Virginia University the fraternity and sorority community joined with the university in imposing a temporary suspension of almost all activities. This suspension still remains in effect with one major exception. In a joint statement dated December 15, 2014, the campus Greek community and the University announced that as the new semester begins that chapters may proceed with new member initiation.

Other times, universities act unilaterally to suspend activities of the entire Greek community.  The dangers of community-wide unilateral suspensions without due process became evident in a very public way at the University of Virginia. On November 19, 2014 Rolling Stone published a story entitled “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA.” In great detail, the story describes the gang rape of a freshman female referred to as Jackie at the Phi Kappa Psi fraternity house two years ago. The story outlines Jackie’s feelings and thoughts as seven men raped her for approximately three hours during a fraternity party at the house.  It then details the social and institutional challenges Jackie faced at UVA in trying to bring the alleged perpetrators to justice. The story was devastating, and surely difficult for anyone to read.

After the story was released, the university Greek community self-imposed a one weekend suspension of all social activities. Three days later, Teresa Sullivan, the President of the University of Virginia, unilaterally announced the suspension of all fraternity and sorority social activities for the remainder of the semester. In part, the statement says “[t]he wrongs described in Rolling Stone are appalling and have caused all of us to reexamine our responsibility to this community… We know, and have felt very powerfully this week, that we are better than we have been described, and that we have a responsibility to live our tradition of honor every day, and as importantly every night.”

While it is understandable that the schools would choose to immediately suspend the chapter where the incident allegedly took place, it is puzzling that schools are choosing to also punish other Greek organizations that had nothing to do with the incident. The 14th Amendment of the Constitution states in part: “nor shall any state deprive any person of life, liberty, or property, without due process of law.” These recent events have raised the question of how public universities, which are “state actors” under the law, can deny students in Greek organizations unrelated to the incidents of their right to the freedom of association, without due process.

Even with the unspeakably awful events described in the Rolling Stone article, many Greek groups felt it was an unfair denial of their due process rights that they were summarily punished for the alleged actions of another group from more than two years ago.  However, due to the combination of the widespread publicity of this event and the fact that the suspension was only set to last until the beginning of the next semester in early January, the due process concerns did not garner much attention.

That changed on Friday December 5, just 16 days after the original Rolling Stone story was released. Several news outlets examined the story and determined that at least some of the reported allegations were not supported by the facts. According to these new reports, Phi Kappa Psi did not have a social event during the night in question. Also, Jackie described the alleged lead perpetrator as a Phi Kappa Psi member who was also a co-worker at the university aquatic center, but no member of Phi Kappa Psi was employed at the aquatic center during this time period. According to the Washington Post, “a group of Jackie’s close friends… said they believe that something traumatic happened to her, but they also have come to doubt her account.” As these details continued to emerge, Rolling Stone released a statement saying “in the face of new information, there now appear to be discrepancies in Jackie’s account, and we have come to the conclusion that our trust in her was misplaced.” As doubts of the Rolling Stone story continued to grow, the University of Virginia chose to leave the suspension on Greek Life social activities in place.

The Greek community was quick to respond. The National Panhellenic Conference (NPC), an organization representing 26 sororities released a statement on this topic. It reads in part, “no matter all the facts and truth to the recent Rolling Stone article, we remain gravely concerned that the turn of events regarding the article may prevent women from stepping forward to report sexual assaults because of the impact to others in the university and Greek community. Women should not be victims twice because of the sexual assaults and then again because of potential concerns with reporting and causing strife among student groups. This is an all-student safety issue, not just Greek community issue, which will continue to be addressed on local and national levels. No doubt, cultural change is necessary and critical. We seek to work with university partners and campus colleagues as we collaborate on next steps moving forward to heal from such events and accusations, and assist in education to help prevent sexual assault and protect women.”

The conclusion of the statement cites the concerns with due process that have been thrust to the forefront by this incident at the University of Virginia. “The sanctions imposed on the sorority and fraternity system, particularly at U-Va., have punished all members with no cited wrongdoing and their rights have been violated.”

On January 6, 2015, after a university committee deliberated and issued recommendations, the University of Virginia announced the reinstatement of all fraternity and sorority social activities, with the stipulation that each fraternity and sorority president must sign an addendum to the University’s Fraternal Organization Agreement by January 16, 2015. The addendum includes new rules for social events. These include: 1) a required number of “sober and lucid” members at each social event, 2) prohibiting pre-mixed drinks and punches, 3) having a pre-approved security vendor at the door throughout the duration of a party, 4) requiring that a sober member who is monitoring the stairs must have immediate key access to every room in the fraternity house, and 5) a review of these changes during May of 2015 so that revisions can be made before the start of the 2015-2016 school year. According to reports, Phi Kappa Psi was the first fraternity to sign the addendum, and they were reinstated by the university after the Charlottesville police “found no substantive basis that the alleged incident occurred at that fraternity.” However, this investigation remains ongoing.

All of this demonstrates the dangers of punishments before providing for the right to fairly defend against the allegations. As the United States Supreme Court has noted, “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). The most important lesson to be learned from these events is that Universities and the Greek community must work together to reduce and ideally eliminate the conduct that may lead to sexual violence and serious injuries. Following an appropriate hearing, wrongdoers should be punished. Innocent third parties should not suffer adverse consequences as a result.