What Happened in Maryland Must Stay in Maryland 

Ilana L. Linder, Fraternal Law Partners, ilana.linder@manleyburke.com

System-wide suspensions of all social fraternities and sororities on college campuses is not a new concept. While some restrictions are voluntarily imposed by campus Interfraternity Councils (IFCs) or Panhellenic Associations (PHAs) in response to tragic events, others are unilaterally enforced by schools, often without input from students or national staff. This unilateral action can lead to potential infringements on students’ associational and due process rights under the First and Fourteenth Amendments of the U.S. Constitution.

For example, in Fall 2019, Ohio University (OU) issued cease and desist letters to over a dozen student groups, instructing members not to “meet in any capacity, officially or unofficially,” or “communicate[e] with your members, unless preapproved by [University staff].”^[1] Despite numerous other instances in which schools have arguably deprived student organizations and their members of their constitutional rights when imposing system-wide suspensions,^[2]litigation was not necessary to resolve the situations. Typically, universities, prompted by legal demands, reassess their directives and retract restrictions, enabling fraternities and sororities to resume operations.

Unfortunately, that was not the case at the University of Maryland (“UMD”) this spring semester when UMD decided to issue an across-the-board cease and desist directive to all thirty-seven (37) of its IFC and PHA chapters.

Specifically, on March 1, 2024, UMD issued a “Suspension and No Contact Order” (the “Original Order”). Upon information and belief, the Original Order was only applicable to the social fraternities and sororities that are members of the IFC and PHA, but not also to any other student organizations. The Original Order stated, in relevant part,

Effective immediately, all [Interfraternity] and [Panhellenic] new member program activities are suspended indefinitely, pending the results of a thorough investigation. Additionally, all IFC and PHA organizations are on social moratorium indefinitely. Social moratorium prohibits the chapter from having any events, on or off-campus, where alcohol is present.^[3]

The Original Order also prohibited any communication, regardless of subject matter, between new members and active members. Similar to the 2019 OU suspension, the Original Order clarified that “this directive means that every current member of the organization must not contact any new member or prospective new member via in-person, telephone, postal mail, any electronic means (including social media), or third-party communication.”^[4] Consequently, this directive, which was issued within ten days of UMD’s spring break, imposed a complete gag order constituting an unlawful prior restraint on speech, and improperly restricted associational rights.

Perhaps in recognition of the blatant infringement on such rights the Original Order presented, UMD amended the directive on March 6, 2024, to allow some, but not all, speech (the “Amended Order”). The Amended Order provided in part as follows:

This no contact order is limited to communications regarding Greek-letter organization-related activities. The following communications do not apply to this restriction:

• Communications regarding UMD course-related work;
• Employment operations;
• Other UMD organizations and activities; and
• Functions not related to the Greek-letter organization.^[5]

While the Amended Order was something less than a complete gag order, it was nonetheless a content-based restriction on speech and an improper prior restraint on speech. The Amended Order also continued to prohibit all “new member activities and all social events involving alcohol.”

According to the Amended Order, the stated purpose behind the restrictions was:

To implement a pause on new member activities while the University completes its investigation into widespread allegations of health and safety infractions in organizations’ new member intake processes, and to help effectuate a prompt and effective investigation into such allegations. It is critical that the University preserve the credibility of student responses during the investigatory process.^[6]

The Original and Amended Orders were issued in sweeping fashion to all thirty-seven (37) fraternal organizations despite the University repeatedly stating that “no single or specific incident led to this decision.”^[7] Critically, UMD did not provide any predeprivation due process, including notice or an opportunity to be heard, or postdeprivation remedy, to the fraternal organizations before or immediately after imposing the system-wide suspension. Instead, allegedly due to a significant uptick in general (and predominately unsubstantiated, anonymous) concerns pertaining to alcohol, hazing, and other harmful activities, UMD decided to sanction every single group rather than follow its established policies and procedures for disciplining only those groups or individuals who pose true threats to the campus community.

Then, to make matters worse, UMD demanded that over 150 individual members of the suspended organizations participate in in-person interviews with a University-retained consulting firm—staffed almost entirely by attorneys—or else they would be subjected to individual disciplinary action for failure to comply with a University directive. The coercive nature of these interrogations, coupled with attempts to access students’ personal devices, underscores the overreach of the University’s actions.

When UMD refused to lift the unconstitutional suspension while the inquisition continued, four (4) of those fraternities decided enough was enough, and litigation ensued.

The lawsuit, filed by the Alpha Psi Chapter of Theta Chi Fraternity, the Beta Kappa Chapter of Kappa Alpha Order, the Epsilon Delta Chapter of Alpha Sigma Phi Fraternity, the Epsilon Gamma Chapter of Alpha Tau Omega Fraternity, and three individual members of those fraternities, is currently pending in the U.S. District Court for the District of Maryland.^[8]

Wynn Smiley, ATO’s CEO and the spokesman for the Fraternity Forward Coalition, summarized the concern as follows:

We have never seen such an egregious abuse of power in higher education administration. Administrators began with their preferred outcome—that fraternities and sororities must be cut down to size. So, they launched a dragnet operation that infringes students’ civil liberties and subverts the school’s own administrative procedures….This new ‘guilt by association’ standard affects not only the one in seven University of Maryland students who are in fraternities and sororities, but it also creates a chilling effect throughout the student body that administrators can, on a whim, violate their rights to freedom of association and due process and then coerce them into participating in a meritless interrogation rife with innuendo and speculation.^[9]

            Less than two (2) days after the Complaint and a Motion for Temporary Restraining Order (TRO) and Preliminary Injunction (seeking immediate rescission of the system-wide suspension) and with a scheduled TRO hearing quickly approaching, UMD finally announced it was lifting the no-contact order for all thirty-seven groups. Further, except for five (5) groups that remained under partial suspension while further investigations continued, the organizations were permitted to resume full Chapter operations.

Dr. Patty Perillo, UMD’s Vice President for Student Affairs and a named Defendant in the lawsuit, was recently quoted saying, “I really do believe when all is said and done that we’re going to set a model for what universities can and should do when they learn about allegations.”^[10]

But what happened this spring in Maryland must stay in Maryland. As such, although the Plaintiffs’ request for preliminary injunctive was mooted by virtue of the University’s decision, the lawsuit will proceed. If nothing else, we hope this case highlights the importance of establishing legal precedent to deter similar overreaches by public colleges and universities in the future. Ideally, UMD’s approach and the resulting litigation will serve as a cautionary tale for other schools, emphasizing the need for adherence to established procedures and respect for students’ constitutional rights.

Manley Burke is serving as lead counsel for Plaintiffs in the pending suit. If you have any questions, feel free to contact Ilana Linder or Micah Kamrass directly.

[1] Tim Burke, Ohio Univ.’s Efforts to Eliminate Hazing Ignores the Rights of its Students, 162 Fraternal L. 1, 4 (Nov. 2019).

[2] See, e.g., Daniel J. McCarthy, UCF Suspends Greek Life Activities, 124 Fraternal L. 1 (Mar. 2013); Daniel J. McCarthy & Micah Kamrass, Deaths, Assaults, and Injuries Lead to Campus-Wide Bans on Greek Life, 132 Fraternal L. 1 (Nov. 2014); Micah Kamrass, UVA: A Clear Case for Due Process, 134 Fraternal L. 1 (Jan. 2015); Timothy M. Burke, Another System-Wide Suspension, 155 Fraternal L. 1 (June 2018).

[3] Letter from James McShay & James Bond to IFC and PHA Member Organizations (Mar. 1, 2024), https://drive.google.com/file/d/1I57hZBzTnilJTBDrCN5JqNZxrCGqKgI4/view.

[4] Id.

[5] Letter from James McShay & James Bond to IFC and PHA Chapters (Mar. 6, 2024), https://drive.google.com/file/d/1z1XarfhWpqD1GwayfEVg5BcieIdPKkgx/view.

[6] Id.

[7] See, e.g., Letter from James Bond, UMD Asst. Vice President, to IFC and PHA Members (Mar. 8, 2024), https://drive.google.com/file/d/1LuVlBZQT4K_cEcaMrv0sgCipSO_L2wSE/view. 

[8] Alpha Psi Chapter of Theta Chi Fraternity v. James Bond, No. 8:24-cv-00753-TJS (D. Md., Mar. 13, 2024).

[9] Dominick Philippe-Auguste, Students to File for Temporary Restraining Order Against UMD Administrators Amid Greek Life Activity Ban, WMAR 2 News (Mar. 14, 2024, 10:19AM).

[10] Mike Hellgren, University of Maryland Administrator Defends Handling of Fraternity Hazing Allegations, WJZ News (Mar. 22, 2024, 9:41 AM).

Author: Ilana L. Linder