Bowdoin Orient, November 13, 1998
Fraternity claims Bowdoin's ban illegal
Kim Schneider, News Editor
The Bowdoin Orient November 13, 1998

The Delta Kappa Epsilon Fraternity sent a letter to Bowdoin last week
warning that by banning membership in Greek organizations, the College was
in violation of the Higher Education Amendments of 1998. But the
Administration says that Bowdoin's policy on fraternities is consistent with
both state and federal law, and no plans to
change to policy are in the works.

David Easlick, Jr., the Executive Director of the national DKE organization,
sent a letter to Bowdoin, Colby and Middlebury Colleges warning them that
the Higher Education Amendments, part of Public Law 105-244 which was signed
into law by
President Clinton on October 7, contained a provision advising any
institution of higher education that receives federal funding not to abridge
students' rights to free speech and assembly.

"This statutory provision is aimed directly at your denial of the
associational rights of individuals on your campus to associate with whom
they please," read the letter in part, which was addressed to the presidents
of the three colleges. "We trust that it is
your intention to obey the law and permit students on your campus to
associate freely with whom they please in organizations of their own choice.
We intend to support the efforts of students and alumni on your campus to
exercise these important constitutional rights. These constituencies will be
preparing for rush, and while this should not be necessary, we require, on
their behalf, your assurance by November 15, 1998, whether you do intend to
obey the law. Absent a reply, we will assume silence on your part to be
acceptance."

Questions on legal liability

But administrators say the passage in question is merely an opinion of
Congress, rather than an enforceable law. The text in question reads, "It is
the sense of Congress that no student attending an institution of higher
education à should be, on the participation in protected speech or protected
association, be excluded from participation in, be denied the benefits of,
or be subjected to discrimination or official sanction under any education
program, activity, or division of the institution directly or indirectly
receiving financial assistance under this Act, whether or not such program,
activity, or division is sponsored or
officially sanctioned by the institution." The act later defines the
protected association as "the joining, assembling, and residing with others
that is protected under the first and 14th amendments to the Constitution,
or would be protected if the institution of higher education involved were
subject to those amendments."

Dean of Student Affairs Craig Bradley said the words "it is the sense of
Congress" prevents the passage from being actual law. "We asked somebody in
Washington, "What does this mean?", said Bradley, who said it was his
understanding that those six words made that portion of the act not legally
binding. When asked if the Administration had discussed the situation with
the College counsel, Bradley responded, "No, we didn't," adding that the
lawyers had been contacted when the original decision to ban fraternities
was made.

Director of Public Affairs Scott Hood agreed that Bowdoin's policy does not
violate any federal law. "I think it's clear what 'a sense of Congress' is,"
he said. "A sense of Congress is, 'This is what we think you guys ought to
do.' There were several of them in the bill à There was another one dealing
with garments sold in college bookstores making sure they're not being
produced by slave labor in third-world countries."

Hood also quoted a letter from one of the chief sponsors of the Senate
version of the bill sent to his colleagues on June 12: "As 'a sense of
Congress' resolution, the amendment is a statement of policy and would not
limit any school, public or private, in any way."

Mark Corallo, Press Secretary for Congressman Bob Livingston, the bill's
main sponsor in the House of Representatives, agreed that the "sense of
Congress" wording removed any ability to alter college policies. "It's not
binding, but it is to express to the Department of Education that students
have a right to free speech and association."

History of the legislation

Easlick said that he and Restore Our Associational Rights Inc. (ROAR), a
Greek organization advocacy group affiliated with DKE, have been working on
this legislation for several years. "This has really been a labor of love
for about six years, but all of a sudden it all popped together," he said.

Easlick said that his organization originally attempted to establish laws in
each state guaranteeing freedom of assembly to college students similar to
the one in place in California, but legal setbacks in the Northeast
convinced them that a national version was
necessary.

The Higher Education Amendments were sponsored by a variety of
organizations, including fraternity and sorority alumni, the Christian
Coalition, the American Civil Liberties Union and USPIRG. "We had an amazing
alliance of left and right," said Easlick.

The section of the Amendments entitled "Protection of Student Speech and
Association Rights" was co-sponsored in the House by Livingston and fellow
Congressman Buck McKeon, and in the Senate by Larry Craig.

According to Easlick, the original version of the bill introduced by
Livingston left out the words "in the sense of Congress," and thus would
have been legally binding, but the phrase was added in a compromise.

Corallo said that even if the original version had passed, it would not have
affected federal financial aid for higher education. "We're not going to
hurt the students," he said, noting that it would have instead removed
federal funding for projects such as construction.

Why Bowdoin?

Easlick said that he has focused on Bowdoin, Colby and Middlebury because
DKE has "had live groups [there] in the past few years." He said they are
also looking at Williams and Amherst, but are focusing on our three for
right now because they show the most potential.

Easlick said that the colleges are interested in banning fraternities mostly
as a land-grab. "What they're doing is stealing property," he said. "They're
taking the houses that are worth a lot of money and making them worth
nothing."

Easlick added that DKE is not looking for official sanction from colleges;
rather, they are seeking assurances that students who choose to pledge will
not be subject to penalties. "We're not asking for recognition," he said.
"We're just asking not to be punished."

The current Bowdoin policy according to page 21 of the handbook reads:
"Beginning with the fall semester 1997, all Bowdoin students are prohibited
from joining fraternities. Students involved in rushing, pledging,
perpetrating, and initiating activities by fraternities and similar
selective-memberships social organizations will be dismissed permanently
from Bowdoin College." When asked whether this penalty is automatically
applied to any student found to be involved in such activities, Bradley
responded, "Absolutely. That's our policy, voted on by the Trustees. That's
unequivocal."

Hood said that he expected that Bowdoin would respond to Easlick's letter by
the requested date of Sunday, explaining that they are not planning on
reviewing or altering their policy. "I think as a matter of courtesy when
anyone writes to the President, they get a response," he said. "I imagine
the President will respond."

Hood added that the response would also be a good opening to "try to explain
a little more clearly to [Easlick] what it is that we're doing here at
Bowdoin and why we're doing it in the event that he doesn't know what we're
doing à It's not as simple as simply abolishing fraternities. What we're
trying to do is build a whole new system."

Colby and Middlebury respond

Colby enacted a policy similar to Bowdoin's, banning student involvement in
Greek organizations, in 1984. According to their college catalogue, any
student found to be involved in fraternity-related activities "will be
suspended for at least one year and
may be subject to additional penalties that could include expulsion."

Stephen Collins, director of Communications at Colby, said that they were
not reexamining their policy in light of the Amendments. "We do intend to
obey the law, which is exactly where we are now: in compliance with state
and federal laws."

When asked if Colby intended to respond to Easlick's letter by the requested
Sunday deadline, Collins replied, "No, we are not."

Middlebury, like Bowdoin prior to 1997, allows students to join social
organizations like fraternities so long as they are not exclusionary by
gender. According to Phil Benoit, director of Public Affairs at Middlebury,
DKE chose not to participate in the new co-educational Greek system, and so
the college withdrew recognition of them. Like Bowdoin and Colby, Middlebury
reserves expulsion as a possible penalty for participation in unrecognized
Greek organizations.

"We haven't decided how we're going to respond [to Easlick's letter] yet,"
said Benoit. "We're trying to determine what the issue is specifically à We
certainly are aware of it and are addressing it. We probably will respond in
some fashion."

Williams also contacted

On Monday, several days after DKE sent their letter to Bowdoin, the Delta
Phi Fraternity sent a similar letter to the president of Williams College
requesting confirmation by the end of this month that Williams would allow
Delta Phi to "begin the process of re-establishing our chapter in a
cooperative and open fashion."

Stu Gittleman, executive direction of Delta Phi, said that he intentionally
wrote the letter to Williams in a different tone than Easlick's. "We've very
deliberately taken a different approach to this from how Delta Kappa Epsilon
has."

"It is the Delta Phi's firm intention to be, upon reactivation, a valued and
contributing part of the Williams community," the letter reads in part. "We
realize, however, that it has been a long time since an open fraternity
system has existed on campus and we wish to assure you that we have no
desire to disrupt or cause undue stress to the campus culture. Therefore, we
'd like to put ourselves at your disposal so that we may address
cooperatively both these legitimate concerns as well as accommodate those
students, prospective students and alumni who will be certainly exercising
their constitutional rights."

Gittleman said that he is not looking to send a similar missive to Bowdoin,
Colby or Middlebury, as Delta Phi has never had chapters at any of them.
Gittleman also said that he has not yet heard a response from Williams. No
one from Williams was available for comment.

Other fraternities respond

Mark Williams, executive director for the Psi Upsilon Fraternity, said that
their executive council will be examining the Amendments during a board
meeting on Saturday. "We will be addressing all the issues that are being
raised," he said. "I'm hopeful that we can get the cooperation of the
College and move forward in a way that everybody will be happy with. I'd
like to do that in a cooperative manner, whatever that may be." He added
that local Psi U alumni would be involved in any efforts to restore the
fraternity.

Craig Cheslog, a governor for the Alpha Delta Phi Society, said that he had
not heard of the DKE action, but that AD was examining the Amendments and
would try to work with the Bowdoin to restore the Greek system. "We're still
looking at everything that's in the law," he said. "If we decide to act we
would attempt to be constructive in our relationship with the
College. It's dangerous to fight the College unnecessarily."

Greg Plezia, executive director of the Zeta Psi Fraternity which used to
maintain a chapter at Bowdoin, said that there were no immediate plans to
contact Bowdoin. "I don't think we'll take quite as forceful a position [as
DKE] but we are interested in how the College will react to the new
legislation." He added that Zeta Psi is a member of ROAR, the advocacy group
affiliated with DKE, and thus would remain informed about the situation.

One member of a Greek organization's executive board who wished to remain
anonymous said that the last-minute addition of the "sense of Congress"
wording put fraternities in a difficult situation. "Someone with knowledge
of the situation in the last days of the session added the words 'it is the
sense of Congress,' which could really knock the teeth out of the
resolution à You want to make sure if you're going to have a battle that you
know what your ammunition is, and this might not be the best."

The future of fraternities

Bradley said that the College has no plans to re-examine its ban on Greek
societies, emphasizing that the passage in the Amendments it "not legally
binding; it's not law à [Easlick] is representing 'the sense of Congress' as
law, and it's not." Bradley said what he found particularly troubling in the
law is the fact that Congress was attempting to dictate policy to private
colleges. "The fuller content to me is whether private institutions are
independent à [if we can] educate our students as we see fit."

Easlick was quoted in the Times Record as being unsure as to what DKE's next
step would be should Bowdoin reject his request, but added, "We'll either
sue or have a public relations battle."

In a letter to the Associated Press, Easlick also hinted at legal troubles
for the College if they failed to allow fraternities to return. "The editor
of one legal commentary, Fraternal Law, has already raised the question
whether a college not complying with this federal provision might subject
itself to treble damages and attorneys fees under the Federal Civil Rights
statute."
Corallo said that Livingston, who is widely believed to be the forerunner in
the selection of a new Speaker of the House, is still deeply concerned with
the issue of fraternities. "Bob has felt that students have constitutional
rights to freedom of speech and association," he said. "If a school is
receiving federal dollars and is infringing upon students' rights, Congress
ought to be able to review any federal dollars that go to those schools."

Hood said that, with the exception of federal financial aid for students
(which Corallo indicated would most likely not be affected in any future
legislation), Bowdoin receives little federal funding.

When asked if Livingston intended to respond if Bowdoin and other colleges
did not change their policies, Corallo responded, "Will he try to do
something in the next Congress as speaker? Very possibly à but it hasn't
been decided yet."