WRONGFUL EXPULSION

Robert Manley, Manley Burke

The spring of the year is frequently when fraternity chapters around the country finally get fed up with one or another member.  A decision is made that they need to get rid of the troublesome member.  Sometimes the expulsion is done in haste with a reckless disregard for the niceties of fair play.

All fraternities should have a standardized procedure for disciplining its members.  The most severe discipline, of course, is expulsion.

It would be nice if a member could be disciplined based upon anonymous written accusations rather than an actual presentation of facts through documents and testimony where the accused has the right to confront the accuser.  It would be nice if the expulsion could take place without a hearing and without notice or an opportunity for the accused to present a defense.

Little things like a fair procedural process are inconvenient for those who want to get rid of the troublesome member.  Unfortunately, the one thing the courts may do is insist on fair procedures when a membership expulsion is undertaken.  It is not likely that any court will second-guess a rule or regulation of a fraternity as long as it is reasonably related to its purposes.  It is not likely that a court will overturn a decision to expel if the decision is made in a procedurally correct manner.

What is a procedurally correct manner?  Most critically, the procedure followed must conform to the published disciplinary procedures of the organization.  Additional best practices to insure courts will not interfere with internal disciplinary decisions include:

• Notice to the accused that is sufficiently clear to tell the accused what facts give rise to the accused violation of the fraternity rule.
• The rule that was violated must have been promulgated, clear and unambiguous.
• The hearing is scheduled with adequate time for preparation.
• The accuser testifies in the presence of the accused. Written statements, particularly anonymous ones, should not be acceptable.
• The accused should have the right to cross examine the accuser.
• The accused should have the right to present evidence that contradicts the assertions of the accuser, or witnesses that support the accuser’s assertions.
• The decision-maker should be fair and impartial.
• The decision-maker should relate the facts as presented by both sides to the clear and unambiguous rule that is alleged to have been violated.
• The decision-maker should make the decision based solely on the facts brought before the hearing, not on outside rumors, suppositions or gossip.
• While it may not be necessary, it is always wise to have at least one level of administrative appeal, perhaps from the chapter’s disciplinary board to a national office.

It is amazing how many fraternities are inclined to look upon procedures for expulsion as though the procedures were unimportant.  The comment I sometimes hear, “We know the accused is guilty.”

The one thing a court may very well do is overturn a decision if these procedural steps are not followed.

Tragically, it is not only fraternity chapters that can make mistakes in implementing discipline, some universities even conduct disciplinary procedures in such a way as to violate the right of the accused to a fair hearing.