Fraternity Lawsuits against Colgate University
Free Association for Everyone but DKE
Stalinist Russia and the Nanny-state in Hamilton
Coercive Land Grab Portends End of Greek Life
Colgate Views Involved Parents as a Problem
Practical Advice for Fraternities In Free Speech Battles on Campus
Expectations for Fraternity and Sorority members
Congress Weighs
In on Students Rights
Frat Boys at Bay
The National Trend to Eliminate Greek Life
DKE Undergraduates Complaint 10/27/05
STATE OF NEW YORK
SUPREME COURT COUNTY OF MADISON
PETITION/COMPLAINT
Index No.:
Plaintiffs,
Delta Kappa Epsilon Alumni Corporation,
MU of DKE Foundation, and Sam Higgins,
President, on behalf of the student members of the
Mu Chapter of Delta Kappa Epsilon at Colgate University,
who reside in Madison County,
vs.
Defendants.
Colgate University,
Rebecca Chopp, Colgate’s President,
John A. Golden, Colgate Trustees’ Chairperson,
and Adam Weinberg, Colgate’s Dean of the College,
I. INTRODUCTION
On July 7, 2005, without any adequate grounds or due process, as required
by Colgate’s written policies, Dean Adam S. Weinberg (“Weinberg”)
notified the student members of the Mu Chapter of Delta Kappa Epsilon
at Colgate (“DKE”) that their fraternity was, “no longer
a recognized Colgate University organization.” Weinberg’s
directive was based on Colgate’s new Residential Education Program
(“Residential Program”) that requires all Colgate students
(except approximately 250 seniors) to live in university-owned housing.
As noted in Weinberg’s letter, the Residential Program provides
that Greek-letter organizations must be based, “in university housing
beginning the fall of 2005.”
Colgate withdrew recognition from DKE as an organization, even though all of its student members are living in university-owned housing, or have been approved by Colgate to live off campus beginning in the fall of 2005, in accordance with the Residential Program. In reality, DKE is no longer recognized because the MU of DKE Foundation refused to sell its privately owned chapter house to the University. But other Greek-lettered organizations, including Delta Delta Delta, Kappa Kappa Gamma, and Phi Kappa Tau, had no chapter houses to sell Colgate and they remain recognized.
Colgate’s written policies do not specifically require the sale of private property to receive or to retain recognition as a Colgate organization. Weinberg’s July 7, 2005 withdrawal of DKE’s recognition is irrational, arbitrary, capricious, and a breach of the implied written contract between Colgate and its students and the specific promises made to them.
Plaintiffs therefore bring this combined CPLR Article 78 petition and breach of contract/promissory estoppel action to request that this Court annul Colgate’s July 7, 2005 decision to withdraw recognition from DKE as a Colgate organization and award DKE any applicable damages.
II. PARTIES
1. Plaintiff, Mu of Delta Kappa Epsilon Alumni Corporation (“DKE Corporation”), is a non-profit corporation that runs and maintains the DKE fraternity house at 110 Broad Street in Hamilton, New York.
2. Plaintiff, Mu of DKE Foundation (“DKE Foundation”), is a non-profit foundation that owns the DKE fraternity house at 110 Broad Street in Hamilton, New York.
3. Plaintiff, Sam Higgins (“Higgins”), is a student member of DKE and its local president. As DKE’s local president, Higgins brings this suit on behalf of all student members of DKE living in Madison County who were affected by Colgate’s withdrawal of recognition.
4. Defendant, Colgate University (“Colgate” or the “University”), is a non-profit corporation primarily with an academic purpose.
5. Defendant, Rebecca Chopp (“Chopp”), is Colgate’s President who is appointed by Colgate’s Board of Trustees and is responsible for the conduct and the well-being of the University.
6. Defendant, John A. Golden (“Golden”), is Chairman of Colgate’s Board of Trustees, which has final authority for Colgate’s policies.
7. Defendant, Adam Weinberg, is Colgate’s Dean of the College who has primary responsibility for all matters relating to students and student activities.
III. FACTS
Colgate’s Residential Program
8. Beginning with the fall semester of 2005, which began on August 29, Colgate implemented its Program for Residential Education (the “Residential Program”) upon Greek-lettered houses. (Residential Program attached as Exhibit A.) This implementation was the final stage of a pursuit of Colgate’s goal, originally announced in July 2003, to negotiate and acquire, on a voluntary basis, the Greek-letter houses at Colgate by the fall of 2005.
9. A key component of the Residential Program is that all students,
beginning in the 2005-06 academic year, must live in university-owned
housing (except for 250 senior students who are historically granted permission
to live off campus).
10. As noted in a July 7, 2005 letter from Weinberg to student DKE members,
the Residential Program requires, “that by the fall of 2005, all
fraternity and sorority members must live in housing owned by the University.”
(Weinberg letter attached as Exhibit B.)
11. The Residential Program does not require the sale of a Greek-letter chapter house for a Greek-letter organization to remain a recognized Colgate organization. The Residential Program, published by the Colgate Trustees, provides only that “all fraternity and sorority members will be required to live in housing owned by the University.” (Ex. A at 3.)
12. The Residential Program does not prohibit a Greek-letter organization from being recognized if its members live in university-owned housing that is not its former privately owned chapter house (Ex. A).
13. As part of the Residential Program, those Greek-letter organizations whose members live in a chapter house must maintain certain occupancy levels in their houses. If minimum occupancy levels are not maintained over a prescribed period of time, the University may add student non-members to the house. The Residential Program thus contemplates and allows a living arrangement in a chapter house similar to the current living arrangement of the student members of DKE living in university-owned housing with student non-members. (Excerpts of minimum standards attached as Exhibit C.)
14. The student members of DKE meet the purpose and intent and the requirements of the newly implemented Residential Program.
Colgate’s Policies on Student Organizations and Groups
15. Colgate University’s Student Handbook (Student Handbook), effective
at the time of Weinberg’s July 7, 2005 letter, under Student Rights
and Responsibilities, section 6(a), Student Organization and Groups, states
that, “Organizations and groups may be established at Colgate University.
They shall be defined as any number of individuals that: use the campus
as the focus for their activities and/or use University facilities, or
use Center for Leadership and Student Initiative (“CLSI”)
fees, or use the University name; draw their membership primarily from
among the student body of the University.” (Excerpt of Student Handbook
attached as Exhibit D.)
16. Section 6(a)(1) of Colgate’s Student Organizations and Groups policy defines an organization as, “a formally organized body of students with an officer or officers, intending to remain organized on a regular and yearly basis.” (Excerpt of Student Handbook attached as Exhibit D.)
17. Colgate’s Student Handbook does not require that Colgate own an organization’s property for it to receive or to retain recognition from Colgate (Ex. D).
18. The student members of DKE meet the Student Handbook’s definition of an organization.
Greek-Letter Organizations Recognized at Colgate Without Chapter Houses
19. On October 18, 2004, Weinberg sent Colgate students a memorandum that
stated in part as follows, “We currently have three non-residential
Greek-letter organizations: Phi Kappa Tau, Delta Delta Delta, and Kappa
Kappa Gamma. Those organizations will also be part of the Broad Street
community. We will work with them to add a residential component at the
time appropriate to their needs and the availability of housing.”
(Weinberg October 18, letter attached as Exhibit E.)
20. Delta Delta Delta is a nationally recognized sorority of undergraduate women that has existed at Colgate since the mid-1990’s. Delta Delta Delta has never had a privately owned chapter house at Colgate. Its members have lived primarily in university-owned housing. In the beginning of the fall semester 2005, Colgate placed Delta Delta Delta members in the former Sigma Nu fraternity house now owned by Colgate.
21. Kappa Kappa Gamma is a nationally recognized sorority of undergraduate women that also has been in existence at Colgate since the mid-1990’s. Kappa Kappa Gamma has never had a privately owned chapter house at Colgate. It rented an apartment in downtown Hamilton for meetings and other activities. Its members primarily lived in university-owned housing. In the beginning of the fall semester in 2005, Colgate placed student members of Kappa Kappa Gamma in the new Colgate-owned student townhouses on Route 12B.
22. Phi Kappa Tau is a nationally recognized fraternity of undergraduate men that owned its own private chapter house until about 1999. After that time, Colgate University took over the chapter house property and Phi Kappa Tau has been without a privately owned chapter house since then. Phi Kappa Tau members have been living in university-owned housing on campus from approximately 1999 until 2005.
23. In the beginning of the fall semester in 2005, Colgate placed the Phi Kappa Tau student members in the former Phi Gamma Theta house now owned by Colgate.
24. Student members of Delta Delta Delta, Kappa Kappa Gamma and Phi
Kappa Tau have and continue to be recognized as Greek-letter organizations
at Colgate.
The Student Members of DKE
25. Prior to the fall semester of 2005, the student members of DKE lived in the chapter house owned by the DKE Foundation at 110 Broad Street in Hamilton, New York.
26. The DKE Foundation did not sell its property to Colgate University. The student members of DKE do not have an ownership interest in the DKE chapter house.
27. Beginning with the fall semester of 2005, in accordance with Colgate’s Residential Plan, all student members of DKE are living in university-owned housing, except those seniors approved by Colgate to live off campus.
28. Student members of Kappa Kappa Gamma, similar to student members of DKE, live in university-owned housing with student non-members, but DKE is no longer recognized.
Colgate’s Promise
29. On April 15, 2005, Weinberg published a promise in the Colgate Maroon
News as follows: “Members of unrecognized fraternities and sororities
will not be stopped from associating or gathering. Members of those organizations
will continue to be recognized as brothers or sisters and will be treated
the same way as every other student.” (Weinberg promise attached
as Exhibit F.)
Colgate’s Action Withdrawing Recognition of DKE and Limiting Association
30. On July 7, 2005 Weinberg wrote a letter to the student members of
DKE informing them that DKE was no longer a recognized Colgate University
organization. He acknowledged that all members of DKE who are not among
the 250 seniors given permission to live off campus during the 2005-06
academic year have been provided and were going to be living in university
housing. Yet he informed the student members of DKE that they would not
be permitted to conduct fraternal activities or perpetuate DKE at Colgate.
This included a prohibition on the recruitment of new members to DKE.
(See Exhibit B.)
31. Weinberg did not issue such a letter to Delta Delta Delta, Kappa Kappa Gamma or Phi Kappa Tau.
32. On September 8, 2005, Kelly C. Opapari, Assistant Director of Residential Life and Director of Fraternity and Sorority Affairs at Colgate, met with the DKE student members to discuss the status of DKE as an unrecognized fraternity at Colgate. Contrary to Weinberg’s published promise on April 19, 2005, Opapari informed the DKE student members that: (1) DKE was not allowed to perpetuate its organization; (2) if DKE members were engaging in group activities, they were prohibited from including freshman or sophomore males in those activities; and (3) no freshman or sophomore males should be present at social events with DKE student members unless they have already joined another Greek-letter organization. Ms. Opapari suggested that student members of DKE not interact with freshman or sophomore males so as to not create the perception that those individuals were being recruited by DKE for its organization. She informed the DKE student members that if the majority of them were present for an event, it would be considered a prohibited DKE event.
33. Ms. Opapari did not have such a meeting or issue such restrictions
on activities of members of Delta Delta Delta, Kappa Kappa Gamma and Phi
Kappa Tau.
Colgate’s Policy and Procedures Regarding Improper Group Activity
34. The Student Handbook, under Student Rights and Responsibilities, Section 6, Student Organizations and Groups, Subsection l, outlines grounds for a group or organization to be held collectively responsible for misconduct:
• Actions which lead to the misuse of persons, property or University funds that have received the tacit or overt consent or encouragement of the organization or group, or the organization’s or group’s officers.
• In the course of its activities, an incident is the result of the failure on the part of the group or organization or its officers to take reasonable precautions against the misuse of persons, property or University funds.
• A policy or practice of a group or organization is directly responsible for a violation.
• Any organizational group which engages in any such activities, on or off campus, may have sanctions imposed against it by the Dean of the College (or his or her designee).
• A group or organization will not be held collectively responsible for its members’ actions which do not fall under the conditions stated above. (See Exhibit D.)
35. The Student Handbook guidelines for fraternities and sororities outline Basic Standards and provide grounds for permanent withdrawal of recognition of a fraternity. The grounds for permanent withdrawal of recognition include: failure to redress conditions leading to suspended recognition, acts of violence, rape, sexual abuse, flagrant violations of membership procedures, hazing and alcohol policies, and repeated chapter violations over time. (Student Handbook excerpt attached as Exhibit G at 57.)
36. Failure of a Greek-letter organization to sell its property to Colgate is not included as grounds for collective responsibility for an organization or to withdraw recognition from it under the terms of the Student Handbook.
37. The student members of DKE had not engaged in any conduct for which collective liability would be imposed on them or any violation of the Basic Standards before or after Weinberg’s July 7, 2005 letter.
Colgate’s Policy of Due Process Before Discipline
38. The Student Handbook requires written due process if an organization
is disciplined. Under the policy, a university hearing body must review
whether a group should be held responsible for any alleged violation.
The policy requires the Dean’s Disciplinary Officer to convene an
organization misconduct hearing. (Student Handbook excerpt attached as
Exhibit H.)
39. Withdrawing recognition from a fraternity is the most severe form of group discipline for that organization.
40. Colgate never provided the student members of DKE a misconduct hearing prior to withdrawing recognition of DKE.
41. The student members of DKE have not violated any Colgate rule or
policy that warrants group discipline such as withdrawal of recognition
as an organization.
IV. FIRST CAUSE OF ACTION
(Breach of Implied Contract)
42. Plaintiffs incorporate herein all of the allegations set forth in paragraphs 1 through 47 above, as if fully restated here.
43. Colgate’s Residential Program and its Student Handbook constitute implied contracts between Colgate and the undergraduate student members of Delta Kappa Epsilon fraternity.
44. Nothing in the expressed terms of Colgate’s Residential Program or its Student Handbook requires Colgate to own the property of an organization as a condition for it to receive or to retain recognition or organizational status at Colgate University.
45. Colgate breached its Residential Program and its Student Handbook by withdrawing recognition from DKE without adequate grounds or due process.
46. The student members of DKE fully performed under these implied contracts inasmuch as: (1) every student member of DKE (with the exception those seniors permitted by Colgate to live off campus) moved into university housing by the fall of 2005, in accordance with the Residential Program; (2) the DKE student members did not engage in group misconduct proscribed by the Student Handbook; and (3) the student members of DKE did not engage in the misconduct proscribed under the Basic Standards of the Student Handbook or commit any of the prohibited acts warranting withdrawal of recognition under the Student Handbook.
47. Plaintiffs therefore have suffered actual injury, including lost dues and initiation fees, and the ability to perpetuate DKE as an organization, because Colgate no longer recognizes the Mu chapter of DKE as a Colgate organization, despite the student members of DKE’s full performance under the expressed terms of Colgate’s written policies and procedures.
V. SECOND CAUSE OF ACTION
(N.Y.C.P.L.R. Article 78 petition for arbitrary and capricious actions
by Colgate.)
48. Plaintiffs incorporate herein all of the allegations set forth in paragraphs 1 through 53 above, as if fully restated here.
49. Colgate acted irrationally, arbitrarily and capriciously in terminating recognition of the Mu chapter of DKE without having any adequate grounds to do so under the express terms of the Residential Program and Student Handbook, and by not following the proper procedural requirements set forth in the Student Handbook for such action.
50. Colgate also acted arbitrarily and capriciously in determining which organizations retain their recognition with the University under the Residential Program, and which organizations do not.
51. Even though Colgate’s express written policies do not require the sale of an organization’s property as a condition of receiving or retaining organizational recognition, Colgate provided housing and meeting space to and retained active recognition of the three Greek-letter organizations that did not own property at the time the Residential Program was implemented. The undergraduate members of DKE were not given the same opportunity, and instead were disciplined.
VI. THIRD CAUSE OF ACTION
(Promissory Estoppel)
52. Plaintiffs incorporate herein all of the allegations set forth in paragraphs 1 through 57 above, as if fully restated here.
53. Opapari’s September 8, 2005 restrictions on student members of DKE violated Weinberg’s expressed published promise on behalf of Colgate that members of unrecognized fraternities and sororities will not be stopped from associating or gathering and that they would continue to be recognized as brothers or sisters and will be treated the same way as every other student.
54. Defendants’ other conduct toward the student members of DKE limiting their association and denying them recognition are in further breach of Colgate’s expressed published promises.
55. Plaintiffs relied on Defendants’ promises to their detriment.
VII. DEMAND FOR RELIEF
56. WHEREFORE, Plaintiffs request that this Court issue a judgment and order:
A. Annulling Colgate’s July 7, 2005 withdrawal of recognition of DKE as an organization at Colgate and allowing DKE to exist and perpetuate itself as an organization;
B. Awarding any applicable damages, and attorneys’ fees and costs, as a result of Colgate’s arbitrary and capricious actions and its breach of an implied contract and specific promises;
C. Awarding such further relief as the Court may deem just and proper.
Dated: October 28, 2005
Respectfully submitted,
MACKENZIE HUGHES LLP
By:______________________________
Peter D. Carmen
W. Bradley Hunt
101 South Salina Street
Suite 600
P. O. Box 4967
Syracuse, New York 13221-4967
Telephone: (315) 233-8386
Fax: (315) 474-1216
Thomas J. Wiencek
(admitted in Ohio; application for admission pro hac vice pending)
Brouse McDowell, LPA
388 South Main Street
Suite 500
Akron, Ohio 44311-4407
(330) 535-5711, ext. 337
Fax: (330) 253-8601
Counsel for Plaintiffs