Search and Seizure

This fall, for the first time, fraternities and sororities at Indiana University must sign an agreement that would allow university employees, including police officers, to enter and search their houses whenever there is reason to suspect laws or university rules are being broken.

The agreement is similar to those at many private universities. At Carnegie Mellon University, for example, fraternities and sororities agree “to permit Carnegie Mellon or its designees, including Carnegie Mellon security personnel, to enter the public areas of the facility at any time to determine whether any laws or Carnegie Mellon rules or regulations are being violated therein.”

Such policies are uncommon at public universities, however, and IU’s rules go even farther than those typical at private institutions, extending the university’s right to enter not only common areas, but also private rooms. The University of Maryland at College Park, a public institution, has a similar policy, allowing university officials to enter chapters at any time. Maryland owns its 21 Greek houses, however, while most of IU’s houses are privately owned.

“It is part of a growing trend for universities to exert more and more control over off-campus life,” Steve Graham, a Washington defense attorney who frequently represents fraternity chapters, said. “It seems lots of schools would just as soon kill the Greek system. But since the alumni won’t let them, they just want to regulate the Greek system out of existence.”

The new rules come at a time when institutions are getting tougher with fraternities and other single-gender student organizations. In recent years, many colleges have created new rules about what kinds of alcohol fraternities may serve and possess and what types of events they can host, as well as more aggressively punished chapters that have broken the rules.

In 2014, Johns Hopkins University temporarily banned open parties at all fraternities. Earlier that year, the Massachusetts Institute of Technology banned all fraternity gatherings larger than 49 people after a woman fell from a window at an MIT fraternity house. That September, Clemson University suspended all fraternity activity after several incidents, including a sophomore falling from a bridge to his death.

Last year, after three chapters caused nearly $500,000 of damage at two resorts, the University of Michigan pressured its fraternities to begin hiring live-in advisers to better monitor members’ behavior.

Attempts to rein in fraternities have been more aggressive at some private institutions.

Last year, Wesleyan University suspended its chapter of Psi Upsilon, shutting down the one remaining fraternity on campus. In an email sent to students and faculty, Michael Roth, Wesleyan’s president, stated that the chapter was under investigation by state and federal prosecutors for “illegal drug activity,” including group purchases of narcotics.

A year earlier, Wesleyan had ordered its fraternities to become coeducational. At the time, the university only had two fraternities on campus. Delta Kappa Epsilon was suspended five months later, the university said, for failing to “take any meaningful steps or make any reasonable commitments toward residential coeducation.” An unofficial off-campus fraternity called Beta Theta Pi was also made off-limits to students earlier that year. Psi Upsilon agreed to become coeducational, but the house was closed before any female students moved in.

Though small, Wesleyan’s Greek scene had become increasingly reviled by other students on campus, who accused the chapters of rampant drug and alcohol use and sexual violence. In a blog post, Roth wrote that it’s “clear that many students see fraternity houses as spaces where women enter with a different status than in any other building on campus, sometimes with terrible consequences.”

Similar allegations preceded the new rules at Indiana University. Last year, IU suspended or placed on probation nine fraternity chapters and four sorority chapters over charges of hazing, drug use, alcohol abuse and sexual assault.

In October, the university suspended its chapter of Alpha Tau Omega after a video surfaced online that allegedly showed members forcing other members to perform oral sex on women. The explicit video was posted online and shared widely on social media. It shows a group of men cheering on a young man -- clad only in boxer shorts -- as he engages in oral sex with a fully nude woman on a mattress. Other men, also wearing only underwear, sit on the floor nearby as the man on the mattress appears to struggle to push away from the woman.

The following month, IU officials first proposed the new rules.

Margie Smith-Simmons, a spokeswoman for Indiana University, said the policy will not change how fraternities and sororities interact with the university, adding that that the agreement is just the first time the policy has been written out.

“The new Greek agreement is codifying a practice we have already had in place,” Smith-Simmons said. “We want to make sure that the Greek life on our campus can thrive and can continue to play a role in developing our students, while protecting them. The provisions in this agreement really are just in regard to the health and safety of our students.”

As part of the new agreement, fraternities can no longer serve or possess hard alcohol. Beer and wine are allowed for those over 21, but only if the wine is poured in plain sight by a sober member and if the beer is in its original unopened can or bottle. Greek chapters must also hire a professional resident adviser to live in the house.

“Authorized university personnel may enter common spaces and private rooms when there is probable cause to believe that violations of this agreement, Indiana University policy or law are being committed and that a delay to procure a search warrant would endanger the health and safety of the residents, or result in the probable destruction of evidence,” the agreement states.

University officials, including campus police, conducting the searches are “free to seize illegal materials in plain view,” and any evidence observed or seized during such inspections can be used in university disciplinary hearings.

While the rules do not apply to any other student organizations on campus, the policy is similar to the one used in IU’s residence halls. The university’s residence hall guidelines guarantee “the right of individuals to be secure in their persons, living quarters, papers and effects against unreasonable search and seizure,” but it also notes that, like with the Greek agreement, “authorized university officials may enter a room or apartment when there is probable cause to believe that violations of university or civil regulations are being committed.”

Even so, fraternity and sorority members at IU argue that they are being unfairly singled out by the rules and that such searches of their privately owned houses -- compared to the university-owned dorm rooms -- violate their rights under the Fourth Amendment.

“Although I understand the university’s desire to keep tabs on the Greek system, disregarding the Constitution is not the way to do so,” Steven Aranyi, a fraternity member at IU, wrote in the student newspaper, the Indiana Daily Student. “At the end of the day, upstanding students should not have their rights, guaranteed by the Constitution, thrown to the side in order to maintain the image of our school.”

A writer for the website Total Frat Move pessimistically declared “at least half of the houses [will be] stripped of their letters” by next year. The North-American Interfraternity Conference is also worried about the new rules, and Heather Kirk, a spokeswoman for the NIC, said the organization is “working with Indiana University to address concerns” with the policy.

Though laws differ by state, the argument that warrantless searches of privately owned fraternity and sorority houses are unconstitutional has some merit, said Joe Cohn, legislation and policy director at the Foundation for Individual Rights in Education.

In 2013, the Supreme Court of Kentucky concluded that “a fraternity house should be treated as a home for purposes of Fourth Amendment protections,” a determination that has also been shared by the Ohio Court of Appeals and the United States Court of Appeals for the Seventh Circuit, which includes Indiana. Those cases involved police officers entering houses unannounced, however. The law is less clear for a situation like Indiana’s, where chapters must sign an agreement that pre-emptively allows the searches.

Cohn said he found the rules at Indiana University to be “deeply disturbing.”

“A policy like this raises very serious questions about privacy,” he said. “And it raises some very serious constitutional questions. It’s a contract that essentially singles out people who decided to exercise their freedom of association under the First Amendment. It’s one thing for law enforcement to enter private homes when there is a serious danger, but it’s another thing when you’re talking about destruction of evidence. Evidence of what? Rule breaking?”

John Foubert, a professor of higher education and student affairs at Oklahoma State University and founder of the sexual assault prevention program One in Four, said that while some fraternities and sororities do own their homes, they benefit from being officially recognized as university-sponsored student organizations. If Greek organizations want to keep that formal connection, he said, the connection should include allowing university employees to enter the houses.

“If a university employee has probable cause to enter, they absolutely should do so,” Foubert said. “Too many institutional employees over time have taken a hands-off approach to all kinds of illegal behavior in fraternity and sorority houses. The new policy at Indiana is one small step toward helping provide a safe, secure and legal residence for college students who choose to attend Indiana and who choose to be involved in fraternities and sororities.”