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‘Intimate Association’: New Protection for Greeks?

To many, college fraternities are more John Belushi than James Madison. However, a recent federal court ruling out of Brooklyn’s United States District Court for the Eastern District of New York demonstrates again the surprising proximity of the Bill of Rights to the frat house.
Last month, Judge Dora L. Irizarry issued a preliminary injunction requiring the College of Staten Island (CSI) to officially recognize Chi Iota Colony of Alpha Epsilon Pi (AEPi), a Jewish fraternity (Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 2006 U.S. Dist. LEXIS 56257 (E.D.N.Y. 2006)). Prior to the injunction, CSI’s Office of Student Life had refused to recognize AEPi, insisting that doing so would “contravene[] the College’s non-discrimination policy” because of AEPi’s constitution, which requires the group’s membership to be male.
But citing the fraternity’s status as “an organization that promotes congeniality and a supportive social structure for male students,” Judge Irizarry found that CSI’s refusal had likely violated the fraternity’s First Amendment right to freedom of intimate association.
Indeed, Judge Irizarry’s focus on fraternity membership as a protected form of “intimate association” is what’s most interesting about this ruling, because classifying fraternities and sororities as types of intimate association affords Greek organizations at public schools a new constitutional protection against hostile administrators.
A few words about the meaning of “intimate association” are appropriate here. In Roberts v. United States Jaycees, a landmark 1984 freedom of association case, the Supreme Court explicitly distinguished between two types of freedoms of association secured by the First Amendment.
First, there’s “expressive association,” which refers to the right to associate with others to collectively engage in traditional forms of protected First Amendment activity, like assembly, speech, petitioning for redress of grievances, and practicing one’s religion. Pretty straightforward.
Next, the Supreme Court articulated a more subtle right to “intimate association,” declaring that citizens have the right to “enter into and maintain certain intimate human relationships [that] must be secured against undue intrusion by the State because of the role such relationships [have] in safeguarding the individual freedom that is central to our constitutional scheme.” That is to say that the mere existence of certain interpersonal relationships is constitutionally important, even if they don’t explicitly say anything, as a “fundamental element of personal liberty”–i.e., it’s important to be able to choose and privately interact with your own friends without government interference.
So back to the frats. In Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, the only prior case addressing whether a fraternity may qualify as an intimate association, the Third Circuit Court of Appeals held that because of Pi Lambda’s large size, unselective recruiting, and the public nature of its activities, it could not be deemed an intimate association.
But in the present case, according to Judge Irizarry, the fraternity qualified as an intimate association organization because of its “relatively small size, exclusivity in membership, and seclusion in activities central to the group’s purposes.” Acknowledging that no “bright line test” for determining whether a frat is small, selective and private enough to qualify as an intimate association exists, Judge Irizarry’s order still makes clear that the First Amendment respects the right of a “close-knit, selective group” to determine its own criteria for membership without government interference or denial of recognition.
Why is this important? For AEPi, it means they have established a “clear likelihood of success on the merits” for their claim that CSI violated their right to freedom of intimate association, and the District Court has ordered CSI to officially recognize AEPi while the litigation continues. (A final ruling is of course forthcoming; according to the Staten Island Advance, CSI is still evaluating its legal options.)
But for fraternities nationwide defending their presence on campus, AEPi’s victory could mean a powerful new articulation of their constitutional right to be free of intrusive government interference.
Previously, as FIRE President Greg Lukianoff and former FIRE legal intern Matthew Vasconcellos explain in this article, fraternities seeking freedom of association protection relied primarily on their existence as an expressive association: “If ever the right to exist on campus is challenged, a fraternity’s position will be enhanced greatly if it has taken positions on issues and actively exercised its members’ right to speak.” Therefore, for fraternities looking for expressive association rights, the First Amendment was only as useful as they made it, a kind of “use-it-or-lose-it” proposition.
But First Amendment protection for fraternities based on their being a locus of intimate association would mean that fraternities could garner protection based primarily on the private aspects of their group: their selectivity, size, and seclusion from the public eye. For fraternities and sororities across the country, Judge Irizarry’s order may signal a new means for Greeks to protect their First Amendment freedoms—even their right to exist—from zealous administrators.

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