University of Virginia violated Constitution through collective guilt suspension for sororities and frats

University of Virginia violated Constitution through collective guilt suspension for sororities and frats

Earlier, the University of Virginia suspended all of its sororities and fraternities until January 9, in the wake of a Rolling Stone story, since debunked by the Washington Post and other publications, about an alleged gang rape at a campus fraternity (whose fraternity house was vandalized by angry people in response to that story). Even if the story had not unraveled (Rolling Stone has now partly retracted it, contradicting its earlier claims), the University still should end its suspension of Greek organizations. As Tennessee law professor Glenn Reynolds noted, the indiscriminate suspension of all fraternities and sororities for the perceived sins of one of them smacked of “collective punishment,” which is prohibited even in wartime under the Fourth Geneva Convention.

The University of Virginia is not a private college, but rather a public university bound by the First Amendment, due-process and equal-protection guarantees, and other constitutional norms.  For example, the First Amendment rights of college students are essentially coextensive with those of citizens in society at large. [See Healy v. James, 408 U.S. 169, 180 (1972); see also Thonen v. Jenkins, 491 F.2d 722 (4th Cir. 1973) (appeals court with jurisdiction over the University of Virginia explicitly ruled that “first amendment rights on college campuses are coextensive with those in the community at large”)].

The University’s action violated the rights of its sororities and fraternities.  Freedom of association covers the social activities of private clubs. [See, e.g., Louisiana Debating & Literary Ass’n. v. City of New Orleans, 42 F.3d 1483 (5th Cir. 1995) (First Amendment’s freedom of intimate association covers clubs); Curran v. Mt. Diablo Council of Boy Scouts, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (California court of appeal rules that boy scout packs have freedom of intimate association)]. Even temporary restrictions on social interaction are subject to First Amendment and due-process limits.  [See, e.g., Tyree v. Evans, 728 A.2d 101 (D.C. 1999) (due process required opportunity to cross-examine accuser before imposition of one-year no-contact order); Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967) (overly broad no-contact order violated First Amendment)].

Sorority and fraternity members are college students, who have broader rights against their university than a government employee would, and aren’t subject to the special First Amendment limits that apply to government employees[See, e.g., Garcia v. State University of New York Health Sciences Center, 280 F.3d 98, 106 (2d Cir. 2001) (public-concern limit on public employee First Amendment rights doesn’t apply to graduate students); Pinard v. Clatskanie School District, 467 F.3d 755, 765 (9th Cir. 2006) (even high school students have broader First Amendment rights than public employees do in certain respects, such as not having to show their speech addresses a matter of public concern in order to be protected by the First Amendment)].  Moreover, even public employees, who have weaker First Amendment rights, have freedom of association rights vis-à-vis their employer.  [See Wilson v. Taylor, 733 F.2d 1539, 1542-44 (11th Cir. 1984) (successful freedom of intimate association claim by public employee).]

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Constitutional First Amendment and equal-protection principles forbid the government from arbitrarily discriminating against a class of people in the exercise of their First Amendment or associational rights.  [See Citizens United v. Federal Election Commission, 558 U.S. 310, 339-40 (2010); see also Niemotko v. Maryland, 340 U.S. 268, 272 (1951)]. Entities like fraternities can invoke constitutional equal-protection guarantees, not just individuals.  [See, e.g., News America Pub. v. FCC, 844 F.2d 800 (D.C. Cir. 1988) (striking down appropriations provision that targeted a single corporation); Long Island Lighting Co. v. Cuomo, 666 F.Supp. 370 (N.D.N.Y. 1987) (striking down provision that discriminated against a company as a violation of equal protection)].

Here, the University’s action was totally arbitrary in its scope and application.  U.Va. sororities are generally quite law-abiding (for example, they don’t even serve alcohol), and no one says sorority members committed sexual assault. Yet U.Va. shut down their social activities along with all Greek organizations until January. That seems like a flagrant violation of constitutional norms.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at [email protected]


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