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Big Legal Loss for Fraternities

September 14, 2007

The College of Staten Island can deny official recognition to a fraternity because it excludes women, a federal appeals court ruled Thursday.

The decision by the U.S. Court of Appeals for the Second Circuit overturned a lower court judge's August 2006 ordering the City University of New York campus to recognize a new chapter of the Alpha Epsilon Pi fraternity and provide the benefits that go along with that status.

Staten Island officials had argued before the lower court that the fraternity's denial of membership to women violated the college's policy barring discrimination on the basis on gender. The fraternity had argued that the college's denial of recognition prevented it from receiving needed funds, using university facilities and recruiting at student orientations, and restricted its membership because members and potential members had difficulty traveling to off-campus events.

Judge Dora L. Irizarry concluded that the college's policy improperly infringed on the fraternity's First Amendment right to freedom of association. Irizarry, citing the fraternity as an "organization that promotes congeniality and a supportive social structure for male students,” found Alpha Epsilon Pi to be an "intimate association" that deserved the First Amendment's full protection, outweighing Staten Island's interests in carrying out its nondiscrimination policy. The lower court issued a preliminary injunction -- which Staten Island and CUNY officials promptly appealed -- that called for the college to recognize the fraternity and to drop a prohibition against the group's recruitment and "rushing" activities.

The lower court was heralded by advocates for fraternities as an important new legal tool to protect their interests. A 2006 article that appeared on the blog of the Foundation for Individual Rights, for instance, argued that fraternities have typically only qualified for "expressive" association rights, earned primarily when an organization has "taken positions on issues and actively exercised its members’ right to speak.”

Granting First Amendment protection to fraternities "based on their being a locus of intimate association [between members]," argued William Creeley, a FIRE staff member, "would mean that fraternities could garner protection based primarily on the private aspects of their group: their selectivity, size, and seclusion from the public eye. For fraternities and sororities across the country, Judge Irizarry’s order may signal a new means for Greeks to protect their First Amendment freedoms -- even their right to exist -- from zealous administrators."

In its ruling Thursday, however, the three-judge panel of the Second Circuit appeals court specifically undercut the reach of the "intimate association" protection that fraternity advocates had heralded.

"Rather than balancing [the college's] interests in its non-discrimination policy against the fraternity’s interests in opposing the policy, the district court adopted a categorical approach: Either the policy affected a constitutionally protected liberty or it did not. The court reasoned that, if [Staten Island's] policy affected a constitutionally protected interest, the '[i]ntrusion on [the] group’s freedom of association [wa]s subject to strict scrutiny,” the toughest legal standard. "In other words, the district court made no distinction between association claims that are strongly protected by the First Amendment and those that are weakly protected; as long as some First Amendment interest was implicated by the policy, the policy would be subjected to the rigors of strict scrutiny."

The appeals panel's decision questions the extent to which the fraternity deserves to be treated as an "intimate association" warranting the strongest possible Constitutional protection. "Based on its size, level of selectivity, purpose, and inclusion of non-members, the fraternity lacks the characteristics that typify groups with strong claims to intimate association," the panel's ruling said. But it focuses its argument on the assertion that the college's nondiscrimination policy and subsequent denial of recognition and funds does not so impair the fraternity that the regulation unfairly undermines its First Amendment right.

The College of Staten Island's policy "does not prevent the Fraternity from continuing to exist, to hold intimate meetings, to exclude women, or to exercise selectivity in choosing new members. Denial of recognition has consequences primarily for the Fraternity’s non-intimate aspects. CSI’s denial of use of school facilities interferes more with the Fraternity’s ability to solicit strangers from future classes to become new members than it interferes with the ability of its existing members to gather and share intimate associations."

Advocates for fraternities said they had not had a chance to fully digest the Second Circuit's decision, but given how favorably they had reacted to the lower court's ruling, they are certain to be gravely disappointed by the appeals court's ruling.

Officials at CUNY referred questions about the decision to the New York Solicitor General's office, which represented the university in the case. Attorney General Andrew Cuomo, whose office oversees the solicitor general, issued a written statement that said: "We are pleased that the court has recognized the school’s right to deny funds and official recognition to a student organization which discriminates against women. This opinion rightly enables the College of Staten Island to pursue their commitment to creating a community devoid of prejudice."

 

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