WE MAY HAVE DONE IT WRONG THE FIRST TIME, BUT YOU ARE STILL GUILTY

Tim Burke, Manley Burke, tburke@manleyburke.com

In the early morning hours of September 12, 2004, Rachel Payne, a student at the University of Delaware, was killed by a railroad train.  Earlier that night, she had been at a party at the Alpha Tau Omega Chapter House.  After her death, Ms. Payne was found to have had a blood alcohol content of .236, almost three times the Delaware legal limit.

The University quickly launched an investigation and ultimately charged ATO with five violations of campus rules.  The violations included: allowing Payne to leave the party alone, even though she was intoxicated; permitting more people in the house for the party than fire code restrictions allowed; allowing the underage Ms. Payne to drink at the party; failing to check IDs; and violating the disruptive conduct policy.

The University’s regulations prohibited the chapter from being represented by legal counsel at its disciplinary hearing.  The rules did provide for them to be assisted by an “advisor,” but the Chapter’s Advisor was not able to be present at their hearing and, apparently, as a result of miscommunication, the University did not realize that.

The evidence developed at the hearing indicated that Ms. Payne and several of her friends brought their own alcohol into the Chapter house by putting four to five shots of vodka in water bottles each of them had.  There was apparently no solid evidence that the chapter actually provided alcohol, beer or hard liquor to Ms. Payne, and the University’s Hearing Officer specifically found that “it is very likely that guests were able to bring alcohol into the house in unmarked containers without [the Chapter’s] knowledge.”  The Hearing Officer did, however, hold the Chapter responsible for failing to notice Ms. Payne’s leaving the party intoxicated and unescorted.  The Chapter did have a Safe Ride program that would have been available to Ms. Payne had the Chapter noticed she was leaving.  The Chapter was also found guilty of exceeding the capacity of the house and of failing to control admission to the party.  Ms. Payne was not on the guest list for the party.  The Chapter admitted at the hearing that one of its members may have admitted Ms. Payne “through the back door.”  The Hearing Officer, indicating that according to the “judicial record” of the University found that this was ATO’s seventh case and imposed the sanction of revoking the registration of the ATO Chapter and Chapter privileges through the spring semester of 2011.  On appeal, the revocation of recognition was reduced from six years to four years.

Further complicating the ATO Chapter’s situation is that immediately following the University’s sanctions, the City of Newark, where the ATO Chapter house was located, issued an order dated February 1, 2005, requiring the Chapter to vacate its house within 48 hours of the receipt of the letter.  The order was based on a provision of the Newark Zoning Code that provides:

“A fraternity or sorority, however, that is suspended by the University of Delaware so that it is no longer approved and/or sanctioned to operate as a fraternity or sorority for a period of more than one year shall vacate the building and the use as a fraternity or sorority shall be terminated immediately upon such university suspension.”

On February 4, 2005, the Chapter filed suit against both the University of Delaware and the City of Newark.  The complaint filed in the Court of Chancery of the State of Delaware “in and for New Castle County” alleges, among other things, that the University failed to follow its own disciplinary procedure, prohibited the Chapter from being represented by counsel, denied the Chapter the opportunity to confront witnesses, and failed to disclose all evidence against the Chapter.  The complaint also alleges that the penalty was unfair because the prior infractions were all more than five years prior to this incident.  The suit also challenges the constitutionality of the City of Newark Zoning Ordinance.  This suit seeks injunctive relief restraining the enforcement of both the suspension of the Chapter by the University and the City’s order to vacate the Chapter house.

Shortly after the filing of the lawsuit, at the point at which ATO would have had its motion for a temporary restraining order against both the University and the City heard, the University announced that it was withdrawing the charges on which findings had already been made and the discipline imposed.  Delaware also said it would reconvene a new disciplinary hearing.  The University said it was doing so because it did not receive a request for a delay in the hearing to permit the Chapter’s Advisor to attend because of a “technological failure.”  Since the University withdrew its penalty, the orders by the City to vacate the house were moot, at least for the moment.

The University of Delaware did go forward with a second disciplinary hearing based only on those charges on which the Chapter had been found guilty in the first disciplinary hearing.  Following completion of the second hearing, the University of Delaware informed ATO on March 15^th that it had been found guilty of violating the Student Code of Conduct on a total of three charges.  According to an article on the University of Delaware web site, the guilty findings were on two counts of “endangering the lives or safety of others and one count of failing to comply with Delaware alcohol regulations.”  The penalty assessed was a suspension of the fraternity through the spring semester of 2009.  The fraternity can appeal to the Appellate Board, which after the original hearing reduced the penalty from six to four years.  Curiously, it is a four-year penalty now being imposed by the Hearing Examiner.

The lawsuit remains pending and is subject to being moved forward to a new hearing on the motion for a temporary restraining order if disciplinary actions by the University result in a loss of recognition and/or the City again tries to shut down the house.

The University of Delaware is a state institution.  As such, it is bound by the Constitution of the United States to afford its students rights protected by the Constitution.  A University disciplinary proceeding is not the same as a criminal prosecution.  The “Miranda Rights” frequently seen read to criminal defendants on “Law and Order” do not necessarily extend to students in a disciplinary proceeding.

Nonetheless, the University of Delaware process in this case raises interesting Constitutional questions.  Was there a right to legal counsel?  Some prior cases suggest that even on a public campus there is no right to legal counsel in a campus disciplinary proceeding.  However, the University clearly established a right to have “an advisor.”  By failing to afford that right at the first hearing, the University put itself in jeopardy.  Courts generally are reluctant to substitute a judicial decision for a disciplinary decision made by those in charge.  However, courts will generally require any institution, whether a public or private college or a private social organization like a fraternity, to follow their own published disciplinary procedures.  Where they fail to do so in a substantive way, courts may very well invalidate any disciplinary action taken.

Having gone through one hearing, making the determinations as to guilt and innocence on five charges and then having withdrawn the charges and sanctions entirely, if the new hearing now results in new guilty findings and sanctions including loss of recognition, a court could find that the University placed Alpha Tau Omega and its members in double jeopardy, a condition prohibited by the Constitution of the United States.

The City’s Zoning Ordinance creates equally difficult problems, both for the municipality, as well as for the Chapter.  Zoning generally defines uses of property.  Fraternity houses are frequently permitted uses in zoning codes, which regulate zoning districts in the vicinity of large universities.  In this case, the City’s Zoning Ordinance regulates not only the use of the property, but imposes an additional requirement that the occupants of a particular piece of property, the fraternity house, must be recognized by a third party, the University.  In essence, it may be argued that the City is delegating its authority to the University.  Whether such a delegation of legal authority is appropriate is another issue likely to be determined by the Chancery Court in Delaware if this case goes forward.

Overall, this dispute once again emphasizes the need for chapters to have strong risk management policies in place for all their parties and to ensure that their members abide by those policies.  Here, it would appear that the officers and those in charge of the Party at the ATO house attempted to follow their policies.  If a member allowed Rachel Payne entrance to the party “through the back door,” that member only succeeded in placing the entire Chapter in jeopardy and rendering valueless the Chapter house.

The tragedy is that a young woman died.  The facts, even as found by the Hearing Examiner, do not appear to support a claim that her death was in any way related to alcohol provided to her by the Chapter or its members.  Yet, what is clear is that any time there is a death that is in anyway related to a fraternity party, the University and local police are going to investigate, as they should.  That investigation should be fair, must comply with the University’s own published policies, and if the evidence does not support responsibility for the tragedy, the University should be expected to react with justice and not seek simply to make a point by imposing discipline unwarranted by the facts.