Do Bans on Fraternities Violate the First Amendment?
Right of free association is cited in attempts to restore Greek groups,
and to bar them
By BEN GOSE
From the issue dated November 27, 1998
Colby College has clubs for all types of students, including environmentalists, homosexuals, and Republicans. But try to start a fraternity and you'll be suspended for a year, or expelled.
Colby is among a small group of private liberal-arts institutions -- Bowdoin, Middlebury, and Williams Colleges are among the others -- that have abolished Greek systems and have vowed to quash any attempts by students to start off-campus, "underground" fraternities or sororities.
David K. Easlick, Jr., national executive director of Delta Kappa Epsilon, which had a chapter at Colby until the mid-1980s, has argued for years that a ban on fraternities denies students the constitutional right to associate with whomever they choose. Courts generally have sided with the colleges, but Mr. Easlick thinks that a resolution recently passed by Congress will give the upper hand to the fraternities.
The non-binding "sense of Congress" resolution, which was in the Higher Education Act legislation signed into law last month, expresses lawmakers' belief that colleges should not act to prevent students from exercising their freedom of association. It was sponsored in the House of Representatives by U.S. Rep. Bob Livingston, who had belonged to Delta Kappa Epsilon at Tulane University. In floor remarks, Mr. Livingston -- who in January will become Speaker of the House -- said the resolution would "put Congress on record defending the rights of students who face expulsion and other severe consequences by daring to enjoy their most basic constitutional freedoms of speech and association, often off campus and on their own time."
In a letter this month to the presidents of Bowdoin, Colby, and Middlebury Colleges, Mr. Easlick cited the resolution, noted that alumni and students on each campus would soon be preparing for fraternity rush, and asked the colleges not to interrupt the process.
"We trust that it is your intention to obey the law," wrote Mr. Easlick, whose fraternity is based in Grosse Pointe Farms, Mich.
"We're not asking for recognition, a subsidy, or a meeting space," he says. "We just want these kids to be able to be Dekes or Kappa Kappa Gammas or whatever and not be thrown out of school."
The executive director of Delta Phi, another national fraternity, mentioned the resolution in a letter this month to the president of Williams, in which he asked the college to comply with "federal law" by permitting the return of fraternity chapters -- including Delta Phi -- that the college had abolished in 1962.
Colby and Middlebury abolished their fraternity systems in the mid-1980s. Bowdoin announced last year that it would phase out its fraternities by 2000. Two other private liberal-arts institutions -- Denison University and Hamilton College -- forced fraternity chapters to abandon their houses in 1995. (Four fraternities are challenging the Hamilton move in federal court, arguing that the policy violates antitrust laws.)
Officials of Bowdoin, Colby, Middlebury, and Williams say they have no plans to change their policies. They note that the Congressional resolution is merely an expressed opinion, and not "federal law," as some fraternity leaders have called it. Even Sen. Larry Craig, an Idaho Republican and a sponsor of the resolution, acknowledged that fact in a memorandum seeking his colleagues' support. He wrote that the resolution "would not limit any school, public or private, in any way."
The four colleges say that they have been able to recruit a greater number of highly qualified students since phasing out fraternities, and that there appears to be little interest in Greek life among currently enrolled students. They also point out that three lawsuits brought by fraternities challenging the bans -- two against Colby and one against Middlebury -- have been won by the colleges.
"Many students have chosen to attend and associate themselves with the Colby community precisely because it does not have fraternities," wrote Justice Donald Alexander of Maine Superior Court, in a 1986 decision upholding Colby's policy. "A court order authorizing fraternity activity at Colby would violate the rights of these students to associate with each other and gain an education in a fraternity free environment."
William R. Cotter, Colby's president, sent a two-paragraph response to Mr. Easlick. "The law has clearly been interpreted to uphold Colby's own associational rights," he wrote.
While judges have ruled for the colleges, the fraternities have some support in the court of public opinion. The American Civil Liberties Union, for instance, supported the recent "sense of Congress" resolution.
Robert E. Manley, a lawyer who has represented fraternities, says "there's something fundamentally wrong" about the bans on fraternities. "The colleges are telling students that if you go to a meeting off campus of a private association that happens to use Greek letters as its name, you will be expelled or punished, but if you go to a meeting of the Ku Klux Klan, you won't be thrown out of school," says Mr. Manley, whose Cincinnati law firm publishes a journal called Fraternal Law.
"It's amazing that in this day and age, when everything is tolerated," says Mr. Easlick, "that these colleges won't tolerate a mainstream social organization."
The colleges maintain that fraternities are not like other student organizations. When Colby abolished fraternities, in 1984, it cited a variety of reasons: The fraternities were "anti-intellectual," encouraged narrow social and academic experiences for members, had restrictive membership policies, practiced hazing, discriminated on the basis of sex, and were hampering the recruiting efforts of the admissions office, the college said.
What's more, at a time when many of the recent alcohol-related deaths on college campuses have occurred at fraternity events (The Chronicle, November 6), Representative Livingston may not be the fraternities' best advocate. In a recent profile, The Washington Post noted that his "Deke" chapter at Tulane in the 1960s was "notorious for wild, Animal House-style behavior." The chapter painted a warning on the street in front of the house that said "Slow -- Drunk Zone," the Post reported.
Moreover, it's not clear that many students at the colleges that have banned fraternities would be interested in joining one anyway.
Stu Gittleman, executive director of Delta Phi, based in Athens, Ga., declines to comment on whether any students at Williams have expressed an interest in Delta Phi. He says he simply has a "gut feeling" that plenty of Williams students would be interested in Greek life.
But Scott Moringiello, a Williams sophomore and news editor of The Williams Record, the student paper, says he has checked with almost every classmate he knows and has found no one who favors the idea. "It is something that students are very hostile to," he says. "It's not something that people come to Williams for."
Mr. Easlick says there's a simple reason that students aren't expressing interest in fraternities: "It would put a young man in jeopardy of being thrown out of school." He has not spoken this fall with any Bowdoin, Colby, or Middlebury students who are interested in joining Delta Kappa Epsilon, he says.
Many students at the colleges that have abolished fraternities say the campus social scene is thriving without them. Middlebury, for instance, has six "social houses," similar to fraternities but co-educational. The houses are selective (current members pick new ones) and have "initiation" periods. At least one, Kappa Delta Rho, has kept the same name and building that it had as a single-sex fraternity; in fact, it is still loosely affiliated with the national fraternity.
But the social houses have restrictions that some fraternity systems at other colleges do not: Students can't join until their sophomore year; "pledge activity" can last no more than 15 hours per week; and all parties must be open to all Middlebury students.
John Felton, a Middlebury senior and a member of Kappa Delta Rho, says most students would not want fraternities to return. The social houses "don't overwhelm your life like I hear that fraternities do at other places," says Mr. Felton, who is president of the Student Government Association.
At Colby, committees in the residential areas, known as "commons," plan campus-wide social events. Bands from Boston that play salsa and funk music have performed on the campus in the past month. In mid-November, one commons area threw a "semi-naked" dance party, at which students danced in white clothing beneath black lights. "We were slightly less clad than we normally are," explains Walter Wang, a senior and a member of the student government.
"The social life here is pretty good," he adds. "We don't
really need fraternities or sororities."
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Copyright © 1998 by The Chronicle of Higher Education