Vanderbilt, “All-Comers” Policy And its Implications for Greek Organizations

Tim Burke, Manley Burke, tburke@manleyburke.com

On January 11, 2012, the United States Supreme Court, in a unanimous decision, recognized “the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission,” and emphasized that “the right to freedom of association is a right enjoyed by religious and secular groups alike.”¹

With those strong words, the Supreme Court reversed a Court of Appeals decision and rejected an Equal Employment Opportunity Commission effort to enforce the Americans with Disabilities Act against a religious school, which would have had the effect of requiring the religious school to keep a “called” teacher (a minister) it no longer wanted in a leadership position.

While the clear import of this decision is that religious organizations should be free to choose their own leaders, the decision moves in precisely the opposite direction of what the Court said in CLS v. Martinez² just a year and a half ago.  In CLS the Court upheld a public law school’s regulation that denied recognition to religious groups that required their members and leaders to share in the religious beliefs upon which the organization was founded.

At first blush, this dichotomy may appear to have little impact on fraternities and sororities, but an examination of a current controversy at Vanderbilt helps demonstrate how the freedom of association rights of religious organizations are linked to the rights of fraternities and sororities.  Vanderbilt is a private university that would not normally be subject to the requirements of the United States Constitution.  However, Vanderbilt administrators have acknowledged their desire to afford Vanderbilt students the same rights they would have on public campuses under the Constitution.  Recently, Vanderbilt’s administration has announced its intention to enforce an “all-comers” policy similar to that upon which the CLS case was decided.   Vanderbilt is now requiring that for a student group to be recognized and receive the benefits that come with recognition, it must admit anyone who wants to join and anyone should be eligible to run for a leadership position in the organization, even if they do not accept the purpose, principle or the religious beliefs upon which the organization is founded.

In an open letter to members of the Vanderbilt community, Nicholas S. Zeppos, Vanderbilt’s Chancellor, wrote:

As an institution of higher education, Vanderbilt values, above all, intellectual freedom that supports open inquiry, equal opportunity, compassion and excellence in all endeavors.

Religious freedom is also a fundamental value of our university community….

At a town meeting forum held on January 31, 2012, hundreds of students attended to question university administrators about that policy, which appeared to impose restrictions on the very religious freedom the Chancellor saw as a University virtue.

At that forum, the administration acknowledged that fraternities and sororities were exempt from the all-comers policy.  Students pressed the administration over the fact that Greek groups were allowed to discriminate on the basis of gender to deny membership to many students who came through rush but were not selected.  The administration acknowledged those facts and indicated that it may have to re-think the exemptions.

Enforcing a restriction against religious student organizations while not enforcing the same restriction against social fraternities has not gone unnoticed in the media.  In a guest editorial in The Tennessian, one writer wrote:

Vanderbilt administrators face significant challenges if they continue to push this policy.  As the Supreme Court made clear [in CLS], an all-comers policy is legal if and only if it applies equally to all organizations.  [At the town meeting], Vanderbilt administrators acknowledged that this universal application means that fraternities and sororities – who limit membership based on sex and selection criteria – may also be de-recognized.³

And in the National Review on Line, the Senior Vice President of the Foundation for Individual Rights in Education (FIRE) argued:

Actually, Vanderbilt has exempted its fraternities and sororities from the rule.  The imperatives of social justice, it seems, lose all force at the door of the DEKE House.⁴

There is a real danger for Greek groups.  Under CLS, the Court’s language suggests that an all-comers policy must be equally enforced with regard to all groups, except those such as Law Review, where a form of competitive selection takes place.

While the Greek world has long benefitted from federal law that recognizes that college social fraternities and sororities may discriminate in their membership policies on the basis of sex,⁴ that exemption applies only to federal anti-discrimination law.  It does not prevent even a public university from imposing its own anti-discrimination policies to deny recognition to a Greek group that discriminates in membership on the basis of gender.⁶

Perhaps some relief may come as a result of Alpha Delta Chi –Delta Chapter v. Charles V. Reed.⁶  That case involves San Diego State University’s non-discrimination policy, which it was stipulated by the parties allows recognized student organizations to restrict membership and leadership to students who agree with their beliefs unless those beliefs are religious in nature.”

The United States 9^th Circuit Court of Appeals, in reliance on CLS, upheld San Diego State’s denial of recognition to Alpha Delta Chi, a Christian sorority and to a Christian fraternity.  A petition for a writ of certiorari was filed with the United States Supreme Court in December and as of this printing remains pending with the U.S. Supreme Court.  Should the Court elect to hear Alpha Delta Chi’s appeal, the Court’s recent decision in Tabor would seem to provide strong support for the appeal and perhaps result in a clarification or limitation of the CLS decision.  While Vanderbilt would still not be bound by such a decision because of its private status, given past statements by the administration, the justification for its all-comers policy might no longer exist.

Whether or not the Supreme Court accepts the Alpha Delta Chi case, it is worth noting as Vanderbilt was urged to, in a December 2, 2011 letter to the Chairman of Vanderbilt’s Board of Trust and Chancellor Zeppos from Douglas Laycock, a University of Virginia School of Law Professor, and five other law professors from around the country that:

No federal or state statute or regulation requires Vanderbilt (or any other public or private university) to place such a prohibition on religious student groups … leading public universities allow religious groups to select their leaders and members according to their religious beliefs … any federal law or regulation that required Vanderbilt to adopt its new policy would apply equally to … our own university, but no such law or regulation exists.

There appears to be no debate over that statement.  Those universities which are adopting all-comers policies are doing so as a matter of choice, not legal requirement.

At least at Vanderbilt, it appears that the threats to the single sex status of fraternities and sororities is abating.  Vanderbilt officials have told national fraternity leaders that the University relies on Title 9⁷ to exempt Greek groups from the “all comers” policy.  In any event, the Greek world cannot afford to stand idly by while religious groups, some of which operate in many ways as a fraternity or sorority, have their membership policies attacked by university administrators.

Historically the founders of many fraternities and sororities gathered together members of similar religious beliefs and those beliefs formed a part of the bond between members.  So concern for the freedom of religion and its expression by student groups is not foreign to Greek organizations.  Greek groups should be prepared to stand up on behalf of any student organization whose first amendment Freedom of Association rights are jeopardized, whether they are religious groups, political groups or other social organizations.

Ideally those religious organizations whose recognition is being threatened will see Greek groups as their allies, not the enemy.  The right to associate with others of like beliefs should be recognized and supported across the political and social spectrum on college campuses.

There is much at stake in this debate for fraternities and sororities, as there is equally for the colleges and universities where fraternities and sororities exist.  The relationship, between Greek groups and their host institutions is a valuable, symbiotic relationship that has greatly benefited both sides, and more importantly benefited the members of those Greek groups who are the students of the schools involved.  That relationship is greatly jeopardized by an all-comers policy.

1 Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Opportunity Commission, 565 U.S. _____, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012).

2 Christian Legal Society of the University of California, Hastings College of Law v. Martinez, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010).

3 “Legal or not, the Vanderbilt policy is wrong,” Justin P. Gunter, The Tennessian, February 4, 2012.

4 “The Fallout from Christian Legal Society,” Robert Shibley, Senior Vice President of FIRE, the National Review on Line, February 6, 2012.

5 20 U.S.C. 1681.

6 Chi Iota Colony of Alpha Epsilon Pi v. City University of New York, 502 F.3d 136 (2^nd Cir. 2007).

7 20 U.S.C. 1681, et seq.