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 Memorandum of Law 10/27/05
STATE OF NEW YORK
SUPREME COURT COUNTY OF MADISON
PLAINTIFFS’ MEMORANDUM OF
LAW IN SUPPORT OF
PETITION/COMPLAINTIndex 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
N.Y.C.P.L.R. Article 78 prohibits arbitrary or capricious determinations by colleges and universities. Colgate University’s withdrawal of recognition from the Mu Chapter of Delta Kappa Epsilon (“DKE”), effective in the Fall of 2005, is precisely the kind of arbitrary decision for which Article 78 is intended. Colgate evidently withdrew recognition of DKE simply because the Mu of DKE Foundation refused to sell its privately owned chapter house to Colgate at a price unilaterally determined by Colgate. As set forth below and in Plaintiffs’ Petition/Complaint, Colgate’s withdrawal of recognition was arbitrary and capricious because Colgate totally failed to comply with its own procedural due process requirements and blatantly violated its own rules and standards regarding recognition of fraternities. Absolutely nothing in those rules and standards suggests that the decision not to sell a fraternity house to the university is grounds for revocation of the fraternity’s status as a recognized Colgate organization. Colgate, moreover, treated DKE differently from other, similarly situated fraternities and sororities. Colgate’s arbitrary and capricious withdrawal of recognition of DKE should therefore be nullified.
II. FACTS
Colgate’s Withdrawal of Recognition of DKE
Beginning with the fall semester of 2005, Colgate implemented its Program
for Residential Education (the “Residential Program”) upon
Greek-letter houses (Verified Complaint (“VC”) 8). A key component
of the Residential Program is that all students must live in university-owned
housing (except for 250 senior students who are granted permission to
live off campus) (VC 9).
On July 7, 2005, Colgate’s Dean Adam Weinberg wrote a letter to the student members of DKE and their parents informing them of Colgate’s decision that DKE was no longer recognized as a Colgate University organization (Exhibit B, attached to VC). Weinberg’s letter underscored that by the fall of 2005, all fraternity and sorority members must live in housing owned by the University (Exhibit B, attached to VC).
In his letter, Weinberg 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 university housing. Notwithstanding
that the key component of the Residential Program requires students to
live in university housing – and that Weinberg acknowledged that
the student members of DKE were in fact in compliance with this requirement
– Colgate withdrew recognition of DKE as a Colgate organization
(VC 30; Ex. B).
Colgate’s Failure to Adhere to Its Own Residential Program
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
(Exhibit A, attached to VC). The Residential Program, published by the
Colgate Trustees, provides only that “after two years [from July
2003] all fraternity and sorority members will be required to live in
housing owned by the University.” (VC 11; Exhibit A at 3.) The Residential
Program also does not prohibit a Greek-letter organization from being
recognized if its members live in university-owned housing other than
its former privately owned chapter house (VC 12; Exhibit A).
In fact, under the Residential Program, those Greek-letter organizations
whose members live in a university-owned 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. This component of the Residential Program allows
a living arrangement in a chapter house similar to the current arrangement
in which student members of DKE live in university-owned housing with
student non-members (VC 13; Exhibit C attached to VC).
Colgate’s Failure to Comply with Its Own Standards for Recognition
of Fraternities
The Colgate University Student Handbook, effective at the time of Weinberg’s
July 7, 2005 letter (“Student Handbook”), under Student Rights
and Responsibilities, Section 6(a), Student Organizations and Groups,
defines what an organization is at Colgate: “[A]ny 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.” (VC 15; Exhibit D attached
to VC). Section 6(a)(1) of Colgate’s Student Organizations and Groups
policy further 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.
At the time of Weinberg’s letter, the student members of DKE met
the Student Handbook’s definition of an organization. And the Student
Handbook does not require the sale to or ownership by Colgate of an organization’s
property for the organization to receive or to retain recognition from
Colgate (VC 17 and 18).
Colgate’s 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:
a. Actions which lead to the misuse of persons, property or University funds have received the tacit or overt consent or encouragement of the organization or group, or the organization’s or group’s officers.
b. 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.
c. A policy or practice of a group or organization is directly responsible for a violation.
(VC 34; Exhibit D attached to VC)
In accordance with Section 6, subsection l, any organization or group which engages in the activities in Section 6 (a) through (c) above, 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, moreover, will not be held collectively responsible for its members’ actions which do not fall under the conditions stated above (Exhibit D attached to VC).
The Student Handbook guidelines for fraternities and sororities also
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 (VC 35; Exhibit G attached to VC).
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.
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 at or after Weinberg’s July 7, 2005 letter (VC 36, 37).
Colgate’s Failure to Comply with Its Own Due Process Requirements
The Student Handbook also 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 (VC 38; Exhibit H attached to VC).
Withdrawing recognition from a fraternity is the most severe form of group discipline for that organization (VC 39; Exhibit H attached to VC). Colgate never provided the student members of DKE a misconduct hearing prior to withdrawing recognition of DKE (VC 40). 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 (VC 41).
Colgate’s Arbitrary and Capricious Treatment of Plaintiffs Differently from Other, Similarly-Situated Fraternities and Sororities
Weinberg’s July 7, 2005 letter withdrawing recognition of DKE also was inconsistent with how other Greek-letter organizations with members living in university-owned houses were allowed to remain recognized. On October 18, 2004, Weinberg had 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.” (Exhibit E attached to VC).
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 owned by Colgate (VC 20).
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 student townhouses on Route 12B (VC 21).
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 (VC 22). In the beginning of the fall semester in 2005, Colgate placed the Phi Kappa Tau student members in the former Phi Gamma Theta house owned by Colgate.
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. But, unlike student members of Delta Delta Delta, Kappa Kappa Gamma, and Phi Kappa Tau, who continue to be recognized as Greek-letter organizations at Colgate (VC 23 and 24), student members of DKE are no longer recognized as a Colgate organization (VC 27 and 28).
III. ARGUMENT
A. The standards for an Article 78 petition.
Article 78 applies to “every court, tribunal, board, corporation,
officer, or other person, or aggregation of persons, whose action may
be affected by a proceeding under this article.” CPLR § 7802(a).
Private colleges and universities, having accepted a State charter, “can
be compelled in an Article 78 proceeding to fulfill not only obligations
imposed upon them by State or municipal statutes but also those imposed
by their internal rules.” Bennett v. Wells College, 219 A.D.2d 352,
356 (4th Dept. 1996), citing Matter of Gray v. Canisius Coll. of Buffalo,
76 A.D.2d 30, 33 (4th Dept. 1980); accord, Gertler v. Goodgold, 107 A.D.2d
481, 486 (1st Dept. 1985).
Professional educators’ judgment thus is subject to judicial scrutiny, and an appropriate inquiry may be made to determine whether they abided by their own rules, and whether they acted in good faith or if their action was arbitrary or irrational. Tedeschi v. Wagner College., 49 N.Y.2d 652, 658 (1980); Gray, 76 A.D.2d 30, 33-34. Colgate therefore is obligated to follow its own rules regarding the termination of an organization’s recognition, and “an appropriate inquiry may be made, not for the purpose of substituting the judgment of the court for the judgment and discretion of [Colgate], but to determine whether [Colgate’s] action in [denying recognition to Delta Kappa Epsilon] violated the college rules and was arbitrary and capricious.” Gray, 76 A.D.2d at 36.
Although New York common law generally holds that courts retain a “restricted
role” in dealing with and reviewing controversies involving colleges
and universities, Maas v. Cornell University, 94 N.Y.2d 87, 92 (1999),
CPLR Article 78 proceedings do not fall under this general standard. As
the Court of Appeals explained in Maas, Article 78 claims are the appropriate
vehicle for these “university cases” because they ensure that
the integrity of the educational institution is maintained. Id. DKE thus
has a proper claim under CPLR Article 78.
B. The Article 78 standards have been met here.
Courts have repeatedly held that a school’s policies and representations give rise to an implied contract between the institution of higher learning and its students. Olsson v. Board of Education of the City of New York, 409 N.Y.2d 408, 414 (1980) (plaintiff commenced Article 78 proceeding to compel college to award him a diploma); Morales v. New York University, 83 A.D.2d 811 (1st Dept. 1981) (relying on Article 78 cases and standards in evaluating whether university acted in good faith in denying plaintiff’s request for transfer credits toward fulfilling degree requirements); Sofair v. State University of New York, 54 A.D.2d 287, 292, 293 (1976) (plaintiff commenced Article 78 proceeding to compel college to reinstate him as a student in good standing); Carr v. St. Johns’ University, 17 A.D.2d 632, 633-34 (1962) (plaintiffs commenced Article 78 proceeding to reinstate them as students and graduate them); Eden v. Board of Trustees of State University of New York, 49 A.D.2d 277, 284-85 (2nd Dept. 1975) (plaintiffs commenced Article 78 petition to require State to operate school in accordance with representations to prospective students); Cecil v. Bellevue Hospital Medical College, 14 N.Y.S. 490 (App. Div. 1st Dept. 1891) (plaintiff brought application for mandamus to compel college to admit him to final examination and award degree).
The essence of this implied contract is that the university or college must fulfill its promises and act in good faith in its dealings with its students. Olsson, 49 N.Y.2d at 414. Where an institution violates its contractual good faith obligation by acting arbitrarily or irrationally, courts will intervene. Morales, 83 A.D.2d at 811. As outlined below, Colgate’s withdrawal of recognition is arbitrary and capricious because it violates Colgate’s due process procedures and its policies governing recognition of student organizations.
1. Colgate’s withdrawal of recognition of DKE violates its due
process policies.
Colgate’s Student Handbook requires 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 that a Disciplinary Officer refer possible violations
to the University Student Conduct Board for an Organization Misconduct
Hearing. Specific notification requirements exist, as does the right to
a hearing, an opportunity to respond, and the right to non-legal representation
(Exhibit H attached to VC).
Colgate did not utilize any of these mandatory procedural safeguards.
Weinberg’s July 7, 2005 letter was an issuance of a decision, “that
DKE was no longer recognized as a Colgate University organization,”
and not a notification of a proposed action (Exhibit B attached to VC).
Withdrawal of recognition indisputedly is a disciplinary sanction specifically
listed under Colgate’s policies regarding organization misconduct
(Exhibits G and H attached to VC). The student members of DKE therefore
were denied all of their due process rights as a result of Colgate’s
decision to withdraw recognition of DKE as a Colgate organization on July
7, 2005.
New York courts will invalidate a college’s failure to follow its
own procedures. Bennett v. Wells College, 219 A.D.2d 352 (4th Dept. 1996).
In Bennett, the Faculty Manual expressly required the President to make
a recommendation to the Board of Trustees in consultation with the appropriate
faculty committees and the Dean regarding faculty tenure. The President
never made a recommendation or consulted a faculty-committee. Id. at 353-355.
As a consequence, the court directed the college to conduct a de novo
review of the tenure decision. Id. at 357-58.
Similarly, in Tedeschi, 49 N.Y.2d at 661-62, the New York Court of Appeals
recognized that a college had wrongly suspended a student without providing
hearing required by college guidelines. In a decision reversing the Supreme
Court and the Appellate Division, the Court of Appeals ordered that the
student be reinstated unless the college conducted an appropriate hearing.
Id. at 662.
In accordance with Tedeschi and Bennett, Colgate should be required –
at the very least – to provide DKE with a full due process proceeding
in accordance with the Student Handbook before it makes any decision to
withdraw recognition from DKE.
2. Colgate’s withdrawal of recognition of DKE violates the terms of its Residential Program, its Relationship Statement, and its Student Handbook, and treats DKE differently from similarly situated fraternities and sororities.
Colgate’s decision should be annulled because it discriminates against Plaintiffs and is flatly inconsistent with Colgate’s own policies. Colgate’s policies do not require the sale of Greek letter houses to Colgate as a condition of recognition of Greek letter organizations, and Colgate could not reasonably and fairly impose such a requirement.
Although Colgate’s Residential Program expressed a goal to acquire
all of the Greek-letter houses and add them to a Broad Street Community,
the sale of the Greek-letter houses was strictly voluntary. The essence
of the Residential Program was that all students would live in university-owned
housing. And, as demonstrated by Colgate’s dealings with Kappa Kappa
Gamma, Colgate’s Residential Program does not require a Greek-letter
organization to live in a dedicated chapter house.
Similar to Kappa Kappa Gamma, the student members of DKE are living in
university-owned housing with other non-student members. Also, similar
to the terms applicable to chapter houses that must add non-members if
their chapters do not meet minimum occupancy requirements, student members
of DKE are living in university-owned housing among other Colgate students.
The student members of DKE have not done anything contrary to the Residential
Program to warrant a withdrawal of recognition of their organization.
Indeed, Plaintiffs have not done anything that justifies withdrawal of recognition of DKE under any Colgate policies whatsoever. As set forth above, the Colgate 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: (1) actions which lead to the misuse of persons, property or University funds have received the tacit or overt consent or encouragement of the organization or group, or the organization’s or group’s officers; (2) 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; and (3) a policy or practice of a group or organization is directly responsible for a violation. The rules also state that, “[A] group or organization will not be held collectively responsible for its members’ actions which do not fall under the conditions stated above” (Ex. D (emphasis added)). The student members of DKE indisputably have not engaged in any of the above proscribed conduct.
The Student Handbook guidelines for fraternities and sororities also 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. 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. And, once again, the student members of DKE have not engaged in any of this proscribed conduct.
The law is settled that New York courts will invalidate college decisions outside the grounds of their own policies. People ex rel. Cecil v. Bellevue Hospital Medical College, 14 N.Y.S. 490, 490 (1 Dept. 1891). Cecil involved a medical college that specified the fees which were to be paid by students, their course of study, and the qualifications which they must possess to earn a doctor of medicine degree. After a graduate student fulfilled the requirements, entitling him to present himself for final examination, the secretary of the faculty informed him that he would not be allowed to present himself for final examination or be granted a doctorate of medicine. The medical college insisted it had the right to refuse the student his examination and degree. The court found a contract between the college and the student which the student had performed and determined he was entitled to obtain the degree. Id. at 490.
Similarly, in Bennett, supra, the Court concluded that the professor there was entitled to a de novo tenure review because the college failed to apply its own substantive criteria in evaluating the professor for tenure. Bennett, 219 A.D.2d at 356-57. Student enrollment, the crucial factor in the Dean’s negative recommendation, was not among the enumerated criteria in the Faculty Manual. Further, consideration of student enrollment in the decision whether to grant tenure to an individual faculty member was contrary to the college’s stated policy on faculty appointments. Id.
Numerous other cases support these established principles and require universities to adhere to their own procedures and representations. See, e.g., Tedeschi, 49 N.Y.2d at 661-62 (college wrongly suspended student without providing hearing required by college guidelines); Eden, 49 A.D.2d at 284-85 (reversing dismissal of Article 78 petition and requiring State to operate school in accordance with representations to prospective students).
As in the cases discussed above, Colgate failed to apply its own substantive
criteria in evaluating DKE’s status as a recognized organization.
Furthermore, it relied on criteria that were completely outside its policies
and procedures. As a result, Colgate’s withdrawal of recognition
of DKE should be nullified.
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