In my last post, I talked about how Delta Kappa Epsilon's decision not to fight its suspension at Yale University could have serious ramifications for the free speech rights of college students across the country. In this post, I plan to take a step back and explain to fraternities why standing up for free speech--or at least standing up for something--is not only a good thing as a matter of principle, but may also be crucial to their survival as a matter of law. While the legal analysis here applies equally well to sororities, I'm continuing to focus on fraternities because, frankly, fraternities, in my experience, are far more likely to be the ones getting in serious trouble than sororities.
A lot of fraternities seem to know that their freedom of association is protected by the First Amendment. (While the freedom to join and form groups is not technically listed in the text of the First Amendment, it is understood to arise from the protections of freedom of speech and the right to assembly.) What fraternities often do not know, however, is that there are several different kinds of freedom of association protected by the First Amendment, and they are not all made equal.
The strongest kind of freedom of association protected by the First Amendment is the right to "intimate" association, best represented by the family. Our government recognizes that the bonds of family are particularly important and that it should do its best to avoid actions that interfere with this bond. The second strongest kind of freedom of association is called "expressive" association. Sensibly, courts understand that the right to freedom of expression would not mean a great deal if we are forbidden from joining together with like-minded individuals to amplify the power of our voices and take collective action. This understanding forms the basis of our right to form groups around commonly held beliefs whether they are religious, secular, or ideological. Everything from Mothers Against Drunk Driving to NORML is a kind of expressive association. (This includes my nonprofit, the Foundation for Individual Rights in Education, as well.)
Far, far below these two strongly protected forms of association is the weakling of the group: "social" association. Social associations are those groups that are built around activities like hanging out, drinking beer, having fun, or generally just excluding people you think are not quite as cool. While social associations do enjoy some protection under the First Amendment, it's a very weak protection because, frankly, courts simply do not believe that social associations are that important. Therefore, the government can assume greater powers over the regulation of purely social associations than they could ever assume for expressive or intimate associations.
So what does this all mean for fraternities? It means that if all you do is party and hang out on your campus, it's possible that even public universities bound by the First Amendment can kick you off campus. The case law is a bit mixed, but in a 2007 case at the College of Staten Island, for example, the United States Court of Appeals for the Second Circuit allowed the college to eliminate a fraternity altogether, holding that the frat enjoyed very limited associational rights because it was merely a social institution.
Fraternities faced with such challenges to their existence in the past have tried to argue that they are "intimate" associations. Sorry, guys, but courts haven't fallen for that because you're not literally brothers.
The next best hope for fraternities is to claim that they operate as expressive associations, but in order to enjoy the strong protection of expressive associations you have to, well, stand for something. In a 2000 case, the United States Court of Appeals for the Third Circuit threw out a fraternity's expressive association claim because the frat failed to demonstrate that it had ever stood up for a larger cause or principle in any sustained way, observing:
While the international organization of Pi Lambda Phi has an admirable history that includes being the country's first non-sectarian fraternity, there is no substantial evidence in the record that the University chapter of Pi Lambda has done anything to actively pursue the ideals underlying this stance. Although members of the Chapter claimed in their deposition testimony that the Chapter still promotes these ideals, they did not give any specific examples of how it does so. Furthermore, while Pi Lambda Phi's international organization runs various programs aimed at individual development, there is no evidence in the record that even a single member of the University chapter participated in any of these programs.
The Chapter also points to a couple of relatively minor acts of charity performed in 1996 as proof of its expressive aspects, but these are underwhelming. The Chapter represents that it once helped run a Halloween haunted house for the Pittsburgh School for the Blind, raised $350 through selling raffle tickets for a charity called the Genesis House, and ran a "Breakfast with Santa" to raise money for Genesis House. The Chapter's counsel admitted at oral argument that this was the extent of the Chapter's charitable activities. A few minor charitable acts do not alone make a group's association expressive, and community service must have more than a merely incidental relationship to the group's character for such service to implicate the constitutional protection of expressive association. The Chapter has not shown in the record that its sporadic acts of community service are related to its basic nature or goals.
A few minor charitable acts do not alone make a group's association expressive, and community service must have more than a merely incidental relationship to the group's character for such service to implicate the constitutional protection of expressive association. The Chapter has not shown in the record that its sporadic acts of community service are related to its basic nature or goals. Pi Lambda Phi Fraternity Inc. v. University of Pittsburgh, 229 F.3d 435, 444 (3rd Cir. 2000) (internal citations omitted).
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