At the start of this semester, all University fraternities agreed to a new Fraternal Organization Agreement enhancing safety measures and creating other changes (though, notably, two fraternities signed “reluctantly” given a threat of suspension). Following the Rolling Stone fiasco and the conclusion that the gang rape alleged in that article did not occur at Phi Kappa Psi, Greek organizations and even my fellow columnist Nate Menninger are suggesting the administration treated fraternities unfairly by suspending them last semester — and by requiring new FOAs now.
In fact, Kappa Alpha Order and Alpha Tau Omega, the two fraternities that initially refused to sign the new FOA, claimed the University was sacrificing due process and will now possibly pursue legal remedies. The claims these groups are making against the University’s actions are valid in a general sense of fairness. But, in terms of a general conception of rights, fraternities cannot necessarily claim due process has been violated.
The concept of due process in America is rooted in our Fifth and Fourteenth Amendments. Since the Fourteenth Amendment expressly requires states to provide due process, and, being public, the University can be considered an arm of the state, our school therefore must apply the Fourteenth Amendment in its proceedings. This means, obviously, the University cannot arbitrarily expel students. But, this does not necessarily mean the University has a duty to apply due process to student organizations. While we have seen in the past that corporations can be considered people in certain legal realms, an organization is not the same as a corporation. Fraternities sign contracts with the University in the form of FOAs stipulating the rights they may be entitled to, and it is highly unlikely that such contracts provide for the application of due process to the extent it is required for individual students by law. While this does not definitively mean the University does not owe fraternities due process, there is no existing Virginia precedent to suggest it does.
If the University does owe fraternal organizations due process, this would only apply if the University deprives fraternities of their right to liberty or property (as prescribed by the Fourteenth Amendment). The question, then, would be: did the University deprive KA and ATO of their liberty and/or did it deprive them of any property by briefly suspending them and requiring new FOAs? It seems unlikely the University deprived the organizations of their liberty, as it suspended social activities, but it did not expel them or revoke their FOAs (save for Phi Kappa Psi, which voluntarily surrendered its FOA), and the new FOA addenda were drafted together with the IFC. Though sometimes a contract can be considered a property right, an FOA establishing the terms of a relationship between a fraternity and the University would not be considered property. If the University violated the contract it maintained with fraternities, this would not be a question of due process but simply a question of a breach of contract, for which KA and ATO can certainly sue, but as a question of contract law, and not one of due process.
Again, to be clear, this is not to comment on the fairness of the suspension or new FOA agreements — but the legality of the issue is not nearly as straightforward as some fraternities may suggest. A court could easily determine the University owes no due process to fraternities under any circumstances, or a court could find the University does owe due process, but that it did not violate that duty in this case as the issues of liberty and property do not apply (probably a more likely result). While fraternities could, much to their own benefit, achieve a ruling that the University both owes them due process and that these actions have violated that duty, it helps no one to simply throw the term “due process” around as though it is definitively owed. Doing so reveals a minimal understanding of that right.
Dani Bernstein is a Senior Associate Editor for The Cavalier Daily. She can be reached at email@example.com.