Monday saw the last day of testimony in the Chi Phi (Rho Chapter) v. Lafayette College case currently being heard in Easton, PA. Click here for the newspaper article from The Morning Call; and click here for the update provided by a chapter alumnus (and retired attorney) who has been taking notes during the trial. His “chapter fourteen” covers the events of the last day of the trial on Monday. Based on these reports, it appears that the judge is committed to delivering his decision by the end of the month. Judge Giordano was quoted in both reports as saying, “I know one of you will be unhappy when I reach a decision,” “It’s never too late to settle.” (There is slight difference in the verbiage between the two reports, the intent is clear in both.)
(Note: What follows is my personal opinion and interpretation of what I have read about this case. I am not a lawyer or judge, but I have taken several graduate-level courses on the Law of Higher Education, and worked in the fraternity/sorority advising field for many years. Again, this blog is intended to generate conversation about current issues, and its primary audience is my colleagues working in fraternity/sorority advising.)
The Morning Call article asserts that, “The dispute could hinge on one question: Who decides whether a fraternity at Lafayette is active, the college or the fraternity?” If that is the case, that would not be good for Chi Phi. In determining the definition of the word “active,” the judge is more likely to use a “reasonable person” standard before using internal terminology from the National fraternity. The question then would be, “Would a ‘reasonable person’ describe an organization that has no undergraduate members as being active?” Probably not. But then again, I do not think that the trial will turn on this point.
To me, the key points in the trial are:
- What contractual obligations does the College have to maintain and use Vallamont during periods when Chi Phi does not have undergraduate members on-campus?
- As a private institution, what rules and limitations can the College place on individual students related to starting or joining organizations?
- What is the role of the Board of Trustees in limiting organization in the (perceived) best interest of the College?
Based on the materials I have been able to find on-line, I am somewhat confused by the College’s defense strategy. I would have expected two distinct approaches by the college, and I didn’t see indicators of either one.
The first would be to emphasize the rights of a private institution to operate in a private manner. For example, the VPSA apparently stated that the college could not stop students from joining organizations. While that may be true of individuals expressing the First Amendment rights of free assembly independent of the college, there are instances of private colleges preventing members of specific organizations from continuing as students. Colgate University used that tactic to shut down a sub rosa Delta Kappa Epsilon chapter in 2010. (Here is a link to a U.S. News article describing Colgate’s efforts to take over chapter-owned houses in 2005 that lead to those actions. The Colgate Maroon-News (student newspaper) has extensive coverage of the situation over the past seven years, unfortunately they let their web domain expire and I can’t get access to their archives.)
The second defense I expected from the College was to emphasize the obligation of the Board of Trustees to to take action in the best interest of the institution. Courts tend to defer to college governing boards to allow them to act to benefit the institution. The BOT’s decision to defer adding new fraternities or sororities for three years based on the study produced can be explained through them exercising their fiduciary responsibilities. The study indicated concerns about risky behavior and underage drinking that, unless addressed, could expose the College to liability for failing to correct those problems. In the experience of an undergraduate student, a three-year break is significant, for a college as old as Lafayette, taking a three-year break in order to address a serious concern could be justified.
That leaves the contractual obligations spelled out in the various agreements. I am guessing that the judge’s decision will largely focus on sorting through those documents and laying out a plan of action.
My prediction (keep in mind that this blog is for me to share my thoughts and opinions) is that the Judge will require Lafayette to complete all deferred maintenance to Vallamont, and keep the facility in operating order, along with covering insurance and security in a manner similar to the extension of the 2006 agreement. However, I also predict that three-year ban on establishing (or re-establishing) fraternities and sororities will stand due to the Board of Trustees role in governing the institution.
While I think that the decision will declare Chi Phi the winner of the case, the Judge’s statement that “one of you is going to be very disappointed,” is wrong. It seems more likely that both sides will be very disappointed. I am very curious to read the decision.