Talk to My Lawyer

On May 6, 1969, a band of Dartmouth students, opposed to the continued presence of ROTC on campus, took over Parkhurst Hall. One hundred students entered the building, and removed College employees. They pulled Dean Thad Seymour down the stairs, and pushed him out the door. Dean of Freshmen Albert Dickerson was carried out of Parkhurst in his office chair. Some students would later leave the building voluntarily; fifty-six, however, waited for troopers, clad in riot-gear, and armed with dogs and mace, to retake the building.

These, however, are calmer times. So while students, in the face of the Student Life Initiative report, are overwhelmingly opposed (84%) to the College's current direction, they are, in the litigious spirit of our age, consulting lawyers.

“I'm in the process of collecting facts right now to see if there is a way to develop a constructive modus vivendi,” says attorney Robert Manley, who represents fraternities at Dartmouth. “I have worked out peaceful resolutions of these problems at a number of campus, and right now I'm assuming we can reach that. If we can't, I know how to look at other options.”

The right of students to join together in a fraternity or sorority free of state interference is secured by the First Amendment guarantee of free association. But Dartmouth is a “private” institution—an arbitrary distinction, certainly, since the College receives more public money than many “public” universities. Nevertheless, courts have held that private colleges are not bound to honor their students' Constitutional rights.

Some states have extended those rights to students at private universities by statute. California's “Leonard law,” for example, prohibits any public or private university or high school from enforcing any law that is contrary to the First Amendment. “If Dartmouth were in California, I guarantee that they wouldn't be able to get away with this,” says attorney John Howard, who has represented fraternities on the West Coast. A movement to enact a similar law in New Hampshire, though, buckled under pressure from the College in 1994.

In 1998, a federal effort to protect student rights at private colleges was successful. The Higher Education Act of 1965 was amended to read: “It is the sense of Congress that no student attending an institution of higher education on a full- or part-time basis should, on the basis of 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 an education program, activity, or division of the institution directly or indirectly receiving financial assistance under the Higher Education Act of 1965, whether or not such program, activity, or division is sponsored or officially sanctioned by the institution.”

The Amendment enjoyed overwhelming support; the House voted 414-4, and the Senate 96-1, in favor of adoption. And it was explicitly linked to the protection of fraternities and sororities. On the floor of the House, then Congressman Robert Livingston, who sponsored the amendment, said, “A number of colleges throughout this country are vigorously attacking their students' constitutionally protected right of free speech and association. The controversy centers on a decision by some private schools to ban all single-sex organizations like fraternities and sororities and restrict any involvement with them, even if it is off-campus and on their own time.”

Some college administrators—notably those at Middlebury and Bowdoin—believe that the amendment is only an advisory opinion from Congress, and has no binding effect. Some lawyers, however, believe that it creates a cause of action under the civil rights law. That hasn't yet been tested in court. “My goal is to make sure that Dartmouth does not create the opportunity to be the test case,” says Manley. But it might.

What's more, the Education Department could simply decide to enforce the provision. So far, the Clinton administration has declined to do so. With the presidential election in November, however, a new administration could be in place next January. The Education Department could, in accordance with Congress' wishes, deny federal funds to any school that violates the First Amendment rights of students.

If there's a court battle, though, it won't be the first time Dartmouth College has established the leading precedent. In 1818, the College, led by counsel Daniel Webster, defended its sovereignty over its own affairs against state attempts to alter its original charter. The Supreme Court ruled that the royal charter of 1769 was a contract between the College and the government, protected by the Contract Clause of the Constitution, and therefore inviolable by the legislature. Since then, administrators have continually cited the Dartmouth College case as a symbol of their independence.

But if the College wants to rely on private contracting to protect itself from state interference in its internal affairs, it must acknowledge the right to contract. If students entered Dartmouth under a certain set of rules, that was the agreement—and it can't be changed unilaterally by one party. What's more, the College is forbidden by contract from interfering in the private contractual relationship of other parties—such as an alumni corporation and the students who contract to live in their house.

Clearly, Dartmouth wants to own the fraternity houses. The Student Life report mandates substantial capital investments in Greek houses, while limiting the number of students permitted to live in them, reducing rent revenue. If the houses can't afford to make the required improvements, the report suggests, they can always take out “loans from the College, secured by the property,” or “commenc[e] negotiations for the College to acquire the house.” Previous reports on residential life, moreover, explicitly identified ownership of the fraternity houses as a policy goal of the College.

The Greek houses are a popular residential choice of Dartmouth students, and the main competitor of the College in providing student housing. In crippling the fraternities, Dartmouth would gain near-monopoly power over housing. Already, Dartmouth requires Greek houses to charge their residents at least 85% of the rent in College dorms, as a precondition of recognition and continued existence. In other words, if you can offer students housing at a lower cost than the College dorms, you can also be expelled. It's a clear antitrust violation, but no one at Dartmouth has challenged the rule.

Others have, however. In 1995, Hamilton College in New York implemented a policy requiring all students, who had previously been permitted to live off-campus in fraternity houses, to live on campus and to purchase a college meal plan. The fraternities sued Hamilton, alleging that the new residential plan had the aim of eliminating competition in the provision of residential services, and that Hamilton, by preventing the houses from renting rooms to students, was exercising monopoly power as the sole available buyer to purchase the houses at artificially low prices.

Hamilton, like Dartmouth, asserted a noncommercial purpose for their policy: “Self-selected [fraternity] males who have inherited these [fraternity houses,] virtually control social life on [Hamilton's campus],” said the Chairman of Hamilton's Board of Trustees, who argued that Hamilton lost talented female students to other colleges because of the fraternities. “The most disturbing result, however, has been increasing evidence that Hamilton is in danger of being perceived more for its social life than for its academic rigor.”

Despite that argument, the Second Circuit Court of Appeals in 1997 found Hamilton's policy to be an unlawful restraint of trade and, moreover, within antitrust jurisdiction because of the impact on interstate commerce (most of Hamilton's students are from out-of-state). The fraternities, unfortunately, lacked the financial resources to continue the lawsuit on remand from the Second Circuit. Had they persevered, says Manley, whose firm designed the Hamilton litigation, they would have won. “No question.”

Dartmouth's residential life proposal is equally illegal. “They are conditioning students' ability to attend Dartmouth on completely impermissible rules regarding where students want to live,” says Todd Zywicki, a professor of law at George Mason University. “They are using the power of admitting the student to control student residential choices and dining habits, to extort money of them by forcing students to live in College-approved housing.”

There are, of course, other violations in the Student Life report. “There are serious questions involving property rights,” says Jacques Vauclain, Sig Ep's executive director. Says Manley, “There are issues involving invasion of privacy, there are issues of interfering with advantageous relationships between fraternities and their members.”

That students may need to sue Dartmouth to protect their privacy is a sad comment on the nature of a Dartmouth education. Surely, Dartmouth requires you to waive some rights when you enroll, as detailed in the Student Handbook. Yet even these restrictions must, by common law doctrine, be reasonably related to the purposes of the College, which is, ostensibly, education.

Dartmouth's renown and the significance of the Dartmouth College case make it the object of attention for students nationwide, and will likely impact the future of free association on other campuses. “If Dartmouth gets away with this, I can just see the steamrollers coming out of Hanover,” says David Easlick, president of Restore Our Associational Rights, a lobbying group. “Dartmouth will be the leading precedent.”

Students haven't stormed Parkhurst recently, but a core group of students and alumni remain steadfast in their commitment to preserving a free Dartmouth and its heritage. Dartmouth has had a proud tradition of defending First Amendment freedoms, from President Ernest Martin Hopkins' defense of the Communist José Clemente Orozco to President Eisenhower's famous “book-burners” speech at the 1951 Commencement. Dartmouth's students and alumni have also exhibited a curious commitment to the College that has spawned some intense campus battles. And Dartmouth students haven't been shy about asserting their rights.

— Steven Menashi
Editor-in-Chief