Fraternity cannot keep out women if it wants official college recognition

A religious fraternity at a public university will not allow women to join on the theory that women will destroy collegiality at the fraternity and even disrupt the organization through possible romantic encounters which will create jealousy among the members. The public university (City University of New York) denied this fraternity official college recognition, which greatly hampered the fraternity's ability to function. So the fraternity sued in Federal court, claiming the First Amendment protects its right to intimate association. The question in this case pits the First Amendment right of association with the college policy prohibiting discrimination on campus.

The trial court granted the injunction in favor of the fraternity. In Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, the Court of Appeals (Leval, Calabresi and Gibson) on September 13 reversed and found in favor of the College of Staten Island, a CUNY institution. This decision clarifies how the courts should resolve First Amendment association claims. It also makes it quite difficult for fraternities to gain official recognition from public and even private colleges, most of which have sweeping anti-discrimination policies.

The fraternity won the injunction at the trial court because the judge simply held that the fraternity had a right to freedom of association under the First Amendment. The Court of Appeals ruled that this analysis was too simplistic. When associational rights affect close familial relationships, then it is nearly impossible for the government to interfere with those rights without advancing a compelling interest which is usually impossible to establish. Since the fraternity did not invoke the familial associational right, it was not an issue here.

Other associational claims fall within a gray area. This includes the fraternity's desire to keep women out of the club. While the Supreme Court recognizes that organizations do have the right to "intimate association" for purposes of emotional enrichment and the promotion of shared beliefs, we look at the organization's size and selectivity in determining whether that associational right may be upheld. While the fraternity in this case is small, that is not by choice and its president hopes to have more student members some day. While the fraternity is selective, it needs to keep replenishing its membership each year as students graduate. And while the fraternity claims the men's-only policy promotes brotherhood and close relationships among its members, that policy could affect any number of student organizations on campus. The fraternity also sponsors events at which non-members are invited, including women. These factors, the Court of Appeals ruled, weigh against recognizing the fraternity's First Amendment associational rights.

Meanwhile, the Court noted, the College itself has certain interests at stake, including enforcing its policy of non-discrimination on campus. The College of Staten Island, like most colleges, has a written policy advancing diversity and non-discrimination. While fraternities and sororities have long existed as single-sex institutions, the Second Circuit ruled, the college's interest in promoting anti-discrimination outweighs the fraternity's interest in brotherhood. Since the fraternity can exist even without official college recognition (which confers certain benefits), the College wins the case.