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IN THE COURT OF COMMON PLEAS OF THE COMMONWEALTH OF PENNSYLVANIA
IN AND FOR CUMBERLAND COUNTY
JOSHUA R.ERHARDT
511-MARKEYS ROAD
RUFFSDALE, PA 15679
AND
MICHAEL CIATTO
1008 HILLDALE COURT
READING, PA 19605
AND
JEREMY LYON
100 NORTH 67TH STREET
HARRISBURG, PA 17111
AND
PATRICK SHEAHAN
24 KNOLL CIRCLE
SOUTH BURLINGTON, VT 05403
AND
ALEX WHITNEY
77 COOLIDGE ROAD
CONCORD, MA 01792
AND
OMICRON CHAPTER OF SIGMA CHI FRATERNITY
226 VERBEKE ST.
HARRISBURG, PA 17102
PLAINTIFFS,
V
DICKINSON COLLEGE
P.O. Box 1773
CARLISLE, PA 17013
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DEFENDANT.
NOTICE TO DEFEND
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CUMBERLAND COUNTY BAR ASSOCIATION
32 S. BEDFORD ST.
CARLISLE, PA 17013
IN THE COURT OF COMMON PLEAS OF THE COMMONWEALTH OF PENNSYLVANIA
IN AND FOR CUMBERLAND COUNTY
JOSHUA R.ERHARDT
511 MARKEYs ROAD
RUFFSDALE,PA 15679
AND
MICHAEL CIATTO
1008 HILLDALE COURT
READING, PA 19605
AND
JEREMY LYON
100 NORTH 67TO STREET
HARRISBURG, PA 17111
AND
PATRICK SHEAHAN
24 KNOLL CIRCLE
SOUTH BURLINGTON, VT 05403
AND
ALEX WHITNEY
77 COOLIDGE ROAD
CONCORD, MA 01792
AND
OMICRON CHAPTER OF SIGMA CHI FRATERNITY
226 VERBEKE ST.
HARRISBURG, PA 17102
PLAINTIFFS,
V.
DICKINSON COLLEGE
P.O. Box 1773
CARLISLE, PA 17013
DEFENDANT.
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CIVIL ACTION COMPLAINT
BREACH OF CONTRACT VIOLATION OF DUE PROCESS. INVASION OF PRIVACY. VIOLATION OF
HIGHER AMENDMENT ACT OF 1998, DECLARATORY JUDGMENT. PRELIMINARY AND
PREMANENT INJUNCTIVE RELIEF
PRELIMINARY STATEMENT
1. Plaintiffs Joshua R. Erhardt, Michael Ciatto, Jeremy Lyon, Patrick Sheahan, Alex
Whitney, and Omicron Chapter of Sigma Chi, ("the Chapter"), all Plaintiffs collectively,
("Plaintiffs") bring this action against Defendant Dickinson College ("Defendant' or "the College")
to enforce the contractual and constitutional rights afforded students at Dickinson College. The
Defendants are intentionally depriving Plaintiffs of their contractual and constitutional rights.
PARTIES
2. Plaintiff Joshua R. Erhardt is an undergraduate student in his Junior year at Dickinson
College and is the President of the Chapter.
3. Plaintiff Michael Ciatto is an undergraduate student in his Sophomore year at
Dickinson College and is the Vice President of the Chapter and is also a member of the football team
at the College.
4. Plaintiff Jeremy Lyon is an undergraduate student in his Senior year at Dickinson
College and is a member of the Chapter.
5. Plaintiff Patrick Sheahan is an undergraduate student in his Junior year at Dickinson
College and is a member of the Chapter.
6. Plaintiff Alex Whitney is an undergraduate student in his Freshman year at Dickinson
College and desires to become a member of the Chapter.
7. The Omicron Chapter of Sigma Chi ("the Chapter") was founded on December 12,
1859 at Dickinson College. The Chapter has been in continuous existence since its founding.
8. Defendant Dickinson College is a non-sectarian, private, liberal arts college located in
Carlisle, Pennsylvania.
THE HISTORY OF THE CHAPTER
9. Sigma Chi is an international fraternity founded in 1855. There are approximately
217 undergraduate chapters of Sigma Chi located on college campuses throughout North America
today.
10. Sigma Chi's core values are friendship, justice and learning. Sigma Chi strives to
become the preeminent collegiate leadership development organization with the mission to develop
values-based leaders committed to the betterment of character, campus and community.
11. The Omicron Chapter of Sigma Chi is one of the oldest Sigma Chi chapters in the
country, having continuously existed in Carlisle, Pennsylvania and comprised of Dickinson College
students since the Chapter's founding in 1859.
12. The Chapter's fundamental purpose, like that of Sigma Chi, is cultivating, maintaining
and accomplishing the ideals of friendship, justice and learning within its membership.
13. The Chapter maintained a long, productive and cooperative relationship with
Dickinson College throughout its history at the College. Members of the Chapter have been campus
leaders, community leaders, scholars and athletes, both during their time at the College and
following graduation from the College.
MEMBERSHIP REVIEW
14. The Chapter acknowledges disciplinary violations of both the College and Fraternity
rules occurred in the 1990s and earlier this decade.
15. In the Fall of 2003, as a result of those disciplinary violations, the College requested
that the Chapter's alumni conduct a thorough membership review. A membership review is a
process in which each individual member of the Chapter is interviewed and scrutinized to determine
whether or not that individual member is living up to the ideals and standards of the Chapter and of
Sigma Chi.
16. The Chapter's alumni formed a Membership Review Committee to conduct the
membership review. As a result of the membership review, over two dozen members were removed
from the Chapter and lost their membership privileges during the Fall 2003 semester. Only six
members remained after the membership review. i
17. The Chapter's alumni agreed to conduct the membership review for two reasons: (1)
because they recognized the necessity of such action; and (2) because they thought the Chapter's past
disciplinary violations would no longer be held against the Chapter. The alumni and the remaining
members of the Chapter thought the Chapter's record would essentially be clean after they removed
all of the problematic members.
SPRING 2004 EVENTS
18. The Chapter received no pledges during the Spring 2004 Rush because of rumors that
the Chapter would soon be kicked off campus and because of actions by those removed after the
membership review. However, shortly after the close of formal Rush, a group of nine young men
approached the Chapter, asking if they could pledge the Chapter. If these nine young men were not
' Seven members actually remained; however, one member requested he be placed on alumni status because he no longer
wished to be an active member of the Chapter.
permitted to join the Chapter, the Chapter would have essentially ceased to exist because of the six
members remaining following the membership review during the Fall 2003 semester, none were
planning to return to Dickinson College the following academic year. Of the six remaining
members, two graduated at the end of the Spring 2004 semester, three left the campus, and one
planned to study abroad the following academic year.
19. The Chapter requested permission from the College to pledge the group of nine young
men as members of the Chapter to ensure its continued existence. The College, however, denied
permission because the group of students did not participate in formal Rush.
20. However, the Chapter then approached Robert Massa, the Vice President of the
College. Mr. Massa stated that if the Chapter obtained a resolution by the Interfraternity Council
("IFC") approving of the Chapter's request to pledge the group of nine men, the Chapter would "be
pleased with the College's response."
21. IFC then unanimously passed an official resolution outlining the unique situation that
the Chapter was in and ultimately endorsed a one-time opportunity for the Chapter to create a new
pledge class comprised of the nine men so the Chapter could "continue its 145-year heritage on the
Dickinson College campus."
22. The Chapter then presented the IFC resolution to the College in hopes of obtaining
permission from the College to pledge the nine men as members of the Chapter. Even though the
College had previously indicated that the Chapter would be pleased with the College's response if
they obtained such an IFC resolution, the College never replied.
23. The Chapter, after consulting with and receiving the permission of Sigma Chi
International, determined that it was necessary to pledge the group of students to continue its long
existence at the College. The Chapter accepted the men as pledges and ultimately initiated the men
as full members of the Chapter during the spring 2004 semester.
THE COLLEGE EXPELS THE CHAPTER
24. In the Summer of 2004, as a result of the Chapter pledging and initiating the students
without the College's permission, the College offered the Chapter a choice: the Chapter could either
voluntarily remove itself from the College for approximately four years, or it would face a judicial
hearing which would result in a permanent loss of recognition from the College.
25. The Chapter declined to accept the College's offer of a "voluntary" removal from the
College. In the Fall semester of 2004, Jeff Murison met with Dean Ricardo Surita to discuss the
Chapter's situation. At that meeting, Dean Surita reiterated the College's position that the Chapter
could either voluntarily remove itself from the campus and possibly be entitled to seek an application
to return at some undetermined date in the future, or it could go through the disciplinary hearing and
permanently lose recognition from the College. Dean Surita made it clear that the Chapter would
face a permanent loss of recognition from the College if it did not "voluntarily" remove itself from
campus.
26. The College then scheduled a judicial hearing on September 2, 2004, to determine
whether the Chapter's recruitment activities in the Spring of 2004 violated the Community Standards
at the College.
27. However, because the College refused to recognize any of the new members of the
Chapter, the College refused to permit any members of the Chapter to present a defense for the
Chapter. Two members of the Chapter were permitted to attend as witnesses, but they were not
permitted to put on a defense for the Chapter. Specifically, the College stated that the members of
the Chapter could not "serve as official representatives of Sigma Chi because they are not active
Chapter members recognized by the College. This means that they will not receive information
normally shared with the respondent's representative before a hearing, nor will they be allowed to be
present throughout the entire hearing."
28. Following this "judicial hearing," the College banned the Chapter and Sigma Chi for
life from the campus.
29. The College permitted Mr. Murison, as the Chapter's Alumni Advisor, to file an
appeal on behalf of the Chapter. In his appeal letter, Mr. Murison stated:
We are appealing on the grounds that due process was not
followed during the hearing because no active member of the
Chapter was allowed to be present during the full hearing to
represent and defend the organization. The Chapter has nine
active initiated members who are currently present at
Dickinson College this semester and were willing and
available to represent the Chapter at the hearing. The College
did not allow any of them to participate in the hearing as a
representative for the Chapter. Without a representative, there
was no one at the hearing to provide a defense or offer an
explanation for the Chapter's actions. Nor was there a
representative to cross-question to the College's witnesses or
provide any information regarding the proposed sanction. No
possible fair attempt at due process is possible if the accused
person or organization is not allowed to represent itself during
the judicial hearing. (Appeal letter attached as Exhibit A.)
30. The College denied the Chapter's appeal on September 13, 2004.
INCONSISTENT STATEMENTS IN 2004
31. On November 30, 2004, the IFC sent a letter to the men of the Class of 2008 about
joining fraternities. The letter contained a footnote prepared by the Office of Student Activities that
stated:
Notice:
Two fraternities have recently lost their recognition with the
College: Kappa Sigma Fraternity and Sigma Chi Fraternity,
and may be operating sub rosa or underground. It has been
determined that these organizations have interfered with the
Academic Mission and Community's Standards of the
College. All students are discouraged from affiliating and/or
associating with these organizations. Students who do choose
to affiliate and/or associate themselves with one of these
organizations may subject themselves to action from the
College's Community's Standards since these organizations
operate outside College policy and regulation. (Letter
attached as Exhibit B.)
32. In a letter dated December 3, 2004, the College quickly backtracked from the footnote
in the November 30, 2004 letter. Jason M. Feiner, the Assistant Director of Student Activities and
the Director of Fraternities at the College, stated that the College no longer recognized the Chapter.
However, Mr. Feiner also stated:
Dickinson College respects the right of each student to choose
to affiliate with organizations of his own choosing on or off
campus. There are no consequences under the community's
standards based upon the decision to affiliate with or join any
particular off-campus organization. (Letter attached as
Exhibit C.)
RECENT ACTIONS AND THREATS
33. Contrary to the letter of December 3, 2004, which recognized the right of students to
belong to off-campus organizations, on February 1, 2006, Dickinson College informed its students
that merely participating in an unrecognized fraternity can lead to suspension or expulsion from the
College. Specifically, in a letter from Acting Dean of Students Michael Malone ("Dean Malone") to
the members of the Chapter, Dean Malone made it clear that the College would not tolerate any
participation in an unrecognized fraternity. Dean Malone stated that the purpose of the letter was
"due to the lack of clarity on the extent of the potential consequences of membership in Sigma Chi to
this date..."
34. The College also informed the members of the Chapter "that any privileges afforded
by Dickinson College to its students are immediately subject to being withheld or withdrawn from
members of the banned organization."
35. Dean Malone concluded that letter by saying, "[s]hould Dickinson discover any
recruiting or membership activities by Sigma Chi from this day forward, the current members of
Sigma Chi will face immediate expulsion from the College." (Letter attached as Exhibit D.)
36. The list of privileges included "the bestowing of academic honors (including Dean's
List), receiving letters of recommendation from the College, acting as an official representative of
the College (including participating in intercollegiate athletics, and working as members of
residential life staff or admissions office tour guides), and eligibility for merit-based financial aid
(whether new or renewal of previous awards)."
37. Concurrent with the letter to the members of the Chapter, Dean Malone also sent a
letter on February 1, 2006 to the male students in the Class of 2009 and to the parents of the male
students in the Class of 2009. Dean Malone reiterated that the College's policy is to suspend or expel
any student who participates in an unrecognized fraternity. (Letter attached as Exhibit E.)
38. On February 6, 2006, Dean Malone sent another letter to the members of the Chapter
"to once again clarify and communicate [the College's] position." In this letter, the College changed
its position with respect to the withholding and withdrawing of privileges based solely on
membership in the Chapter. However, the College reiterated that the members will be subject to
suspension or expulsion and will suffer the withholding or withdrawing of privileges, individually
and collectively, for any Chapter recruiting and/or membership activities. (Letter attached as Exhibit
F.)
39. Further, in an effort to investigate students who may be involved with the Chapter, the
College has interfered with the delivery of the United States Mail. Specifically, upon information
and belief, Jason Feiner from the College opened mail sent through the United States Postal Service
to Plaintiff Michael Ciatto. In October 2005, the Chapter's billing company, Omega Financial, Inc.,
sent a bill to Mr. Ciatto. Upon information and belief, Jason Feiner from the College intercepted the
letter and sent a return letter to the billing company. The original letter was not addressed to the
College, but was addressed solely to Mr. Ciatto.
40. Two students, Plaintiff Michael Ciatto and another member of the Chapter, recently
met the requirements for the College's Dean's List. However, the College initially refused to bestow
the honor of placement on the Dean's List upon Mr. Ciatto and the other member of the Chapter.
After the members complained of their exclusion from the Dean's List, the College claimed to have
reversed its decision and claimed it later placed both Mr. Ciatto and the other member of the Chapter
on the Dean's List. However, on the College's web page at www.dickinson.edu, the College posts
those students who made the Dean's List. Mr. Ciatto and the other member of the Chapter are still
not posted as being on the Dean's List.
41. Most recently, in an attempt to intimidate Plaintiffs, members of the Chapter, and
other students at the College that may be interested in becoming members of the Chapter, the
College demanded that Plaintiff Joshua Erhardt and two other students meet individually with Jason
Feiner. Mr. Feiner emailed Plaintiff Erhardt and the two other students on the night of April 17,
2006, to inform them that the College unilaterally scheduled meetings for the following morning and
that "[t]his meeting is very important and your attendance is expected." No notice of the purpose of
the meeting was provided.
42. Mr. Feiner further stated that he checked the students' class schedules to ensure that
the meeting did not conflict with any scheduled classes and that he would consult with any employer,
if necessary, to ensure the students' attendance.
43. Plaintiff Joshua Erhardt promptly replied that he was concerned about the extremely
late notice of the meeting, the method of the notice, and the complete lack of details as to the subject
of the meeting.
44. In his reply to Plaintiff Erhardt, Mr. Feiner refused to explain the purpose of the
meeting, but reiterated that Plaintiff Erhardt's attendance was required.
45. At the meeting on the morning of April 18, 2006, Mr. Feiner demanded to know if the
Chapter was conducting any recruiting activities, and specifically asked about a magazine article that
appeared in a publication circulated by the Sigma Chi International Fraternity. Mr. Feiner stated that
he was investigating whether the Chapter was violating the terms of the letters the College
distributed in February 2006.
46. Plaintiff Erhardt denied that the Chapter was conducting any recruiting activities and
subsequently informed Mr. Feiner that the submission date for articles for the particular Sigma Chi
magazine was in December 2005, nearly two full months before the College issued the February
2006 letters.
47. Mr. Feiner then required Plaintiff Erhardt and the Chapter to produce evidence from
Sigma Chi International Fraternity to prove that the Chapter did not have any current pledges. The
Chapter produced such evidence because Mr. Feiner promised to follow through with the College's
threats to expel those students who recruit on behalf of the Chapter and those who seek to become
members of the Chapter.
CONTRACTUAL RELATIONSHIP AND STUDENTS' RIGHTS AT THE COLLEGE
48. Each academic year, Dickinson College publishes a book entitled "The Student
Handbook." Upon information and belief, this booklet is distributed to each student at Dickinson
College, as well as those inquiring about, actually applying to, or to those accepted to the College.
Among other things, The Student Handbook details students' rights and responsibilities at Dickinson
College.
49. The College also produces a publication entitled Community Standards. The
Community Standards details the College's Statement of Principles, expected conduct of the
students, and the school's disciplinary system.
50. Once Dickinson College receives an application from a potential student, the College
must determine whether or not to extend an offer for that applicant to become a student at the
College.
51. When the College extends an offer to an applicant to become a student, the College's
rules and policies are part of that offer.
52. Applicants consider the College's rules and policies in determining whether or not to
accept the College's offer to become a student at Dickinson College.
53. The Student Handbook contains the College's rules and policies. Included in the
Student Handbook is a section entitled "Students' Rights As Citizens." The "Students' Rights As
Citizens" section in the Student Handbook guarantees students at Dickinson College the same
constitutional rights and privileges that other citizens enjoy. Specifically, the Student Handbook
states:
College students are both members of the academic
community and citizens. As citizens, students should enjoy
the same freedom of speech, peaceable assembly and right of
petition that other citizens enjoy. The College shall not
inhibit such intellectual and personal development of students
as may be prompted by the exercise of these rights, both on
and off campus. (emphasis added) (Relevant section attached
as Exhibit G.)
54. That exact same quote also appears in the Community Standards published by the
College. The Community Standards also contains the College's Statement of Principles. The
College's Statement of Principles states as follows:
Citizen-leaders - a defining characteristic of members of the
Dickinson College community.
To prepare our students to be active, engaged citizens of the
world and to educate them for positions of leadership in their
communities, nation, and around the globe is a strategic
objective of this College. Dickinson's definition of
citizenship, drawn from the College's roots in the American
Revolutionary era, centers on using its own community to
instill habits of independence (as formed by the interplay of
freedom and responsibility), self-governance, respect for and
service to ideals greater than the individual self, and
recognition that liberal education advances citizenship and
substantive professional and personal contributions to society.
(Relevant section attached as Exhibit H.)
55. When an applicant accepts the College's offer to become a student at the College then
pays the required tuition and enrolls at the College, a contract is formed.
56. One of the terms of that contract guarantees students at the College the same
constitutional rights and privileges that other citizens enjoy.
THE INTIMATE NATURE OF THE CHAPTER
57. The Chapter currently consists of approximately 18 members, while there are
approximately 2,300 students at Dickinson College.
58. Further, the Chapter has not exceeded 20 members since the Chapter's alumni
conducted the membership review during the Fall semester of 2003.
59. The Chapter's size is relatively small compared to the overall size of Dickinson
College's student body.
60. The Chapter exercises a high degree of selectivity in decisions to begin and maintain
affiliation by individuals with the Chapter, and prospective members must exercise their own
selectivity in deciding to become members by expressing an interest and willingness to commit
themselves to the purposes of the Chapter.
61. No man who has already joined another college social fraternity may become a
member of Sigma Chi.
62. This selectivity enables the Chapter to be an organization in which the relationships
among the members are continuous, close and personal. This brotherhood results in deep
attachments and commitments to the other members of the Chapter, among whom is shared a
community of thoughts, experiences, beliefs and distinctly personal aspects of their lives.
63. The Chapter's specific recruitment policy is detailed and requires multiple steps so
that the members of the Chapter can evaluate each potential new member to insure that each
candidate exhibits the required traits of friendship, justice and learning. The recruitment process
centers around the goal of finding candidates that exemplify the qualities and attributes of both the
Sigma Chi Fraternity and the Chapter.
64. Nonmembers are excluded from the critical aspects of the Chapter, such as the
initiation ritual and the pledge ceremony, meetings to discuss when to extend an invitation to a
potential new member, and meetings to discuss termination of a membership. These are all private
ceremonies or meetings, from which the public is excluded.
65. The Chapter's weekly meetings use Sigma Chi's ritual and are strictly limited to the
members of the Chapter. At these private meetings, the Chapter discusses and decides all crucial
elements of the Chapter's operation.
THE EXPRESSIVE NATURE OF THE CHAPTER
66. The fundamental purpose of the Chapter, like that of Sigma Chi, is the cultivation,
maintenance and accomplishment of the ideals of friendship, justice and learning within its
membership.
67. The Chapter serves its purpose by developing, implementing, and monitoring
programs that foster leadership, build character and promote positive relationship skills, which in
turn enable its members to become productive and caring participants in their families and
communities.
68. The Chapter's core values are friendship, justice and learning, and it maintains a
mission to develop values-based leaders committed to the betterment of character, campus and
community.
69. The Chapter has a strong emphasis on scholarship and learning. Currently, the
Chapter maintains a cumulative grade point average over 3.0 and strives to become the preeminent
leadership organization on campus through scholarship.
70. Learning is one of the three core values of the Chapter and of Sigma Chi.
71. The Chapter created the Omicron Educational Incentive Program ("OEIP") to
promote friendship and learning. Through the OEIP, the Chapter promotes scholastic
accomplishment through a combination of intellect, hard work, and teamwork.
72. The Chapter also has two scholarship funds: (1) the Sigma Chi House Fund, which
currently has over $125,000.00; and (2) the Lester T. Etter Scholarship Account, which currently
holds slightly over $200,000.00. The Chapter distributes $15,000.00 to the members of the Chapter
in the form of scholarship each year from these two scholarship funds. The rewards are based on
academic performance, leadership in a classroom and the community, fulfillment of brotherhood
obligations, and financial need.
73. Through the OEIP, the Chapter rewards brothers for academic excellence. Members
are rewarded not only for the highest academic honors, but also for the most academic improvement
based on the grade point average.
74. The Chapter participates in numerous charitable and philanthropic activities
throughout the Carlisle community. In the Fall of 2005, the Chapter partnered with the American
Heart Association in support of their Capital Region Division Heart Walk. The Chapter raised
$1,161.00 for the American Heart Association.
75. The Chapter also recently participated in a successful food drive to support the
Harrisburg Downtown Daily Bread. Members of the Chapter collected nearly 600 cans of food
during a one-week time period, which was delivered two days prior to Thanksgiving.
76. The Chapter also participates in numerous other charitable and philanthropic activities
such as raising money for the Carlisle YMCA, raising money for the development of the Arts,
participation in the Winterfest-Children's Miracle Network, participation in the Polar Bear Plunge to
benefit the Special Olympics, participation in the MS Walk, and helping the Salvation Army with
their Toys For Tots campaign.
77. Individual members of the Chapter also contribute their time and resources to the
community and campus. Two members recently worked the Pan Massachusetts Challenge, which is
the nation's original fund-raising Bike-A-Thon, and today raises more money than any other athletic
fund-raising event in the country. Members also assisted the Athletic Department by volunteering to
sell programs and media guides at the College's football games. The Chapter also recently assisted
Blake William, a visiting artisan University Art Professor, with her innovative artistic expression.
78. Sigma Chi is founded upon religious ideals and values. The Chapter has incorporated
these ideals and values. In order to become a pledge of the Sigma Chi Fraternity and, therefore, the
Chapter, one has to swear to their belief in an ever-living God. Further, the Chapter says a prayer at
every Chapter meeting.
FIRST CAUSE OF ACTION
BREACH OF CONTRACT
79. Plaintiffs incorporate herein all of the allegations set forth above as if fully restated
here.
80. Dickinson College extended an offer to Plaintiffs to attend Dickinson College.
81. The Dickinson College rules and policies are material terms in the offer to Plaintiffs
to become students at Dickinson College.
82. The Dickinson College Student Handbook and the Dickinson Community Standards
provide that it is the policy of Dickinson College that its students are entitled to the same
constitutional rights and privileges as other citizens.
83. The College's recent actions are contrary to the College's Statement of Principles to
Develop Citizen Leaders.
84. By accepting the College's offer to attend Dickinson College, Plaintiffs accepted the
College's rules and policies.
85. By accepting the College's offer and by paying tuition and attending Dickinson
College, Plaintiffs and Dickinson College entered into a contract.
86. The Chapter is both an intimate and expressive association and is, therefore, entitled
to the right of freedom of association under the First Amendment to the United States Constitution.
87. The College, by threatening students with expulsion for merely participating in
activities related to the Chapter, is violating the contract that it entered into with Plaintiffs.
88. The College's actions do not comport to the basic ideas of fairness because the
College's actions arbitrarily and capriciously disregard their own rules and regulations.
SECOND CAUSE OF ACTION
BREACH OF CONTRACT
89. Plaintiffs incorporate herein all of the allegations set forth above as if fully restated
here.
90. Dickinson College entered into a contract with Plaintiffs.
91. The College threatened to withhold or withdraw certain rights, benefits and privileges
of students for merely participating in an unrecognized fraternity and breached its contract with
Plaintiffs.
THIRD CAUSE OF ACTION
BREACH OF CONTRACT
VIOLATION OF DUE PROCESS
92. Plaintiffs incorporate herein all of the allegations set forth above as if fully restated
here.
93. Dickinson College entered into a contract with Plaintiffs.
94. Dickinson College violated its contract with Plaintiffs by failing to provide due
process and by failing to follow its own rules and guidelines to the Chapter and its members when it
banned the Chapter in absentia in the Fall of 2004.
95. The discipline hearing in the Fall of 2004 was arbitrary and capricious and the
College failed to follow its own rules and regulations, and failed to provide fundamental fairness or
due process.
FOURTH CAUSE OF ACTION
VIOLATION OF DUE PROCESS
96. Plaintiffs incorporate herein all of the allegations set forth above as if fully restated
here.
97. Defendants violated PlaintiffErhardt's rights by failing to provide due process and by
failing to follow its own rules and guidelines by requiring Plaintiff Erhardt to attend a meeting on
April 18, 2006, with Jason Feiner with only approximately 12 hours notice.
98. The College, by requiring Plaintiff Erhardt to attend a meeting with approximately 12
hours notice and no notice as to the purpose of the meeting, failed to provide fundamental fairness of
due process. The College, by requiring Defendants to prove their innocence, failed to provide
fundamental fairness and due process.
FIFTH CAUSE OF ACTION
INVASION OF PRIVACY
99. Plaintiffs incorporate herein all of the allegations set forth above as if fully restated
here.
100. The students at Dickinson possess an expectation of privacy.
101. Students have a right to receive mail sent via the United States Postal Service free of
interruption and without fear that their mail be intercepted by College administrators.
102. In October 2005, the College, through Jason Feiner, intercepted mail sent via the
United States Postal Service to Plaintiff Michael Ciatto, a student at the College. Such interference
with the mail is in violation of 18 U.S.C. §1701.
103. Dickinson's actions constitute an invasion of Plaintiff Michael Ciatto's privacy rights.
104. Additionally, Plaintiffs and other students at the College have the right to join
organizations that are not affiliated with the College. The College's actions in interfering with this
right violate Plaintiffs' and the Chapter members' rights of privacy.
SIXTH CAUSE OF ACTION
VIOLATION OF HIGHER EDUCATION AMENDMENT ACT OF 1998
20 U.S.C. §1011A
105. Plaintiffs incorporate herein all of the allegations set forth above as if fully restated
here.
106. Based upon information and belief, Dickinson is the recipient of federal funds under
the Higher Education Act of 1965, as amended by the Higher Education Amendments of 1998, Title
I, Part B, Section 112 (otherwise known as 20 U.S.C. §1011a), which are used by Defendants to
assist in running Dickinson, which funds include federal grants, Stafford loans, etc.
107. 20 U.S.C. §1011a provides, in part:
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 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.
108. "Protected Association" is defined in subparagraph C(2) of the Higher Education
Amendments of 1998 as "the joining, assembling, and residing with others that is protected under the
First and 14'" Amendments to the Constitution, or would be protected if the institution of higher
education involved were subject to those amendments."
109. "Protected Speech" is defined in subparagraph C(3) of the Higher Education
Amendments of 1998 as "speech that is protected under the First and 14a' Amendments to the
Constitution, or would be protected if the institution of higher education involved were subject to
those amendments."
110. "Official Sanction" is defined in subparagraph C(1) of the Higher Education
Amendments of 1998 as follows:
(A) means expulsion, suspension, probation, censure,
condemnation, reprimand, or any other disciplinary, coercive,
or adverse action taken by an institution of higher education
or administrative unit of the institution; and includes any oral
or written warning made by an official of an institution of
higher education acting in the official capacity of the official.
111. Plaintiffs have been threatened with "official sanction" by Defendants in the form of
discipline, coercion and/or adverse action on the basis of their participation in "protected
association" and "protected speech" in violation of prohibitions in 20 U.S.C. §1011 a.
112. Additionally, the United States Supreme Court recently ruled that colleges that accept
federal funds must allow equal access to military recruiters. Rumsfled v. Forum for Academic and
Institutional Rights, Inc., 547 U.S. _ (2006). The Court held that Congress has the Constitutional
authority to command colleges to accept military recruiters. Likewise, Congress has the
Constitutional authority to prevent colleges from disciplining students for participating in protected
organizations.
SEVENTH CAUSE OF ACTION
DECLARATORY JUDGMENT
42 PA. C.S.A. §7532
113. Plaintiffs incorporate herein all of the allegations set forth above as if fully restated
here.
114. There currently exists a real controversy between the Parties.
115. Speedy relief from this Court is necessary to preserve the rights of the Parties with
regard to the subject matter.
116. Plaintiffs are entitled to declaratory judgment pursuant to 42 Pa. C.S.A. §7532 that
Dickinson College is in breach of contract with Plaintiffs.
EIGHTH CAUSE OF ACTION
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF
117. Plaintiffs incorporate herein all of the allegations set forth above as if fully restated
here.
118. The Defendants are threatening real and immediate disciplinary actions against the
members of the Chapter, including Plaintiffs, for merely participating in an unrecognized fraternity.
119. The disciplinary action threatened by the College includes the possibility of
immediate expulsion from the College.
120. Plaintiffs are entitled to an immediate preliminary injunction to prevent the College
from disciplining, expelling, or withdrawing or withholding benefits, privileges and honors merely
because they choose to associate together as members of the Chapter.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for:
A. A declaration pursuant to 42 Pa. C.S.A. §7532 that Dickinson College entered into
contracts with the Plaintiffs. One of the terms of these contracts guarantees students at the College
the same constitutional rights and privileges that "other citizens enjoy."
B. A declaration that Dickinson College is in breach of its contract with Plaintiffs and
Dickinson College is directed to comply with the terms and provisions of the contract that it entered
into with the plaintiffs and to comply with their own rules and regulations.
C. A preliminary injunction to prevent Dickinson College from disciplining Plaintiffs
and all other members of the Chapter and future members of the Chapter for merely participating in
activities related to the Chapter. Discipline as used here includes suspension and expulsion from the
College, as well as the withholding of any College privileges and benefits such as academic honors,
including the Dean's List, receiving letters of recommendation from the College, participation in
intercollegiate athletics, withholding or withdrawing diplomas or certificate reflecting academic
qualifications, and all other relevant privileges and benefits.
D. A permanent injunction to prevent Dickinson College from disciplining Plaintiffs and
all other members of the Chapter and future members of the Chapter for merely participating in
activities related to the Chapter. Discipline as used here includes suspension and expulsion from the
College, as well as the withholding of any College privileges and benefits such as academic honors,
including the Dean's List, receiving letters of recommendation from the College, participation in
intercollegiate athletics, withholding or withdrawing diplomas or certificate reflecting academic
qualifications, and all other relevant privileges and benefits.
E. A preliminary and permanent injunction to prevent Dickinson College from
disciplining Plaintiffs and all other members of the Chapter, and future members of the Chapter, for
merely participating in litigation to support their rights. Discipline as used here includes suspension
or expulsion from the College, as well as withholding any College privileges and benefits such as
academic honors, including the Dean's List, receiving letters of recommendation from the College,
participation in intercollegiate athletics, withholding or withdrawing diplomas or certificates
reflecting academic qualifications, and all the relevant privileges and benefits.
F. A declaration that the Chapter has the right to exist as an organization in Carlisle,
Pennsylvania, and that Dickinson College cannot punish students merely because they become
members of the Chapter and who participate in Chapter activities.
G. Any other and further relief the Court deems equitable.
Respectfully submitted,
SWARTZ CAPBELL LLC
I(XkW4A (mow,
Kevin Canavan
Thomas Ollason
SWARTZ CAMPBELL
1601 Market Street, Floor 34
Philadelphia, PA 19103
Telephone: (215) 564-5190
Facsimile: (215) 299-4301
Email: kcanavan@swartzcampbell.com
Email: tollason@swartzcampbell.com
Counsel for Plaintiffs
Of Counsel
Timothy M. Burke
Daniel J. McCarthy
MANLEY BURKE
A LEGAL PROFESSIONAL ASSOCIATION
225 West Court Street
Cincinnati, Ohio 45202
Telephone: (513) 721-5525
Facsimile: (513) 721-4268
Email: tburke@manleyburke.com
dmccarthy@manleyburke.com
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Thank you for the opportunity to appeal the decision of the hearing board on behalf of the
Omicron Chapter of Sigma Chi Fraternity.
The Sigma Chi Fraternity is appealing the recent decision of the hearing board on the grounds
that procedures were not followed and that the sanction is excessive.
We are appealing on the grounds that due process was not followed during the hearing because
no active member of the chapter was allowed to be present during the full hearing to represent
and defend the organization. The chapter has nine active initiated members who are currently
present at Dickinson College this semester and were willing and available to represent the
chapter at the hearing. The college did not allow any of them to participate in the hearing as the
representative for the chapter. Without a representative, there was no one at the hearing to
provide a defense or offer an explanation for the chapter's actions. Nor was there a
representative to cross question to the college's witnesses or provide any information regarding
the proposed sanction. No possible fair attempt at due process is possible if the accused person
or organization is not allowed to represent its self during the judicial hearing.
We are also appealing the sanction on the grounds that it is excessive. We start from the fact that
the college ordered, and under the direction of the International Fraternity, the organization
executed a full membership review in December approximately two weeks after it was ordered.
The chapter went from 30 members to seven members at the conclusion of the membership
review. We believe this essentially created a new chapter with a clear mission to rebuild and a
clean record. (One of the seven brothers voluntarily requested to be moved to alumni statue in
mid Feb. resulting in six active members of the "new" chapter.) Other then this allegation, there
were no other questions of inappropriate behavior since the membership review. In fact,
significant progress was made towards rebuilding the chapter during the spring semester,
including major improvement in attention to the ritual, a number of community and philanthropy
activities, two brotherhood events, and increased communications with our alumni.
Expelling the new chapter permanently for its first and only violation of the college's rules, no
less its only violation of the rush and pledge education rules is unprecedented. This is the first
time the chapter comprised of the new members has been charged, no less found responsible, for
violations of the college's rules, and specifically the rush and pledging rules. What's more, since
the membership review was completed, a significant turning point in the chapter's history and
identity, the "new" chapter has not been charged with or found responsible for any other
violations, and certainly not any other violations of this type.
The chapter aggressively attempted to avoid violating the rules. They requested permission from
the college on numerous occasions and to all levels of the administration. It the advise of the
Vice President of the college it sought and received the support of the IFC, in the form of a
resolution, to have the pledge class within the allowed time frame, and appealed to the school for
an exception to move forward when that resolution was rejected by the Deputy Dean. Violating
the rules was its last and only option to avoid having few or no members on campus next spring
to recruit and pledge new members. The college's decision to prohibit the pledge class forced
the chapter to make the decision to violate the rules regarding rush and pledging.
Not only is this the only violation for the new chapter, it is the first of its kind even for the old
chapter in a long time. To find any violations by the chapter, you have to go back to the old
chapter, prior to the membership review. To find a violation of this type, you would have to go
back over 4 years to find even an allegation of a similar violation. In that case, we believe the
chapter was not found responsible. Since we do not have a full and accurate listing or history of
every accusations and convictions for the old chapter for all time, we are not claiming that there
has never been a case where the chapter has been found responsible for violation the college's
rush or pledging policies. None the less, we can not remember such a case in the past 5 years.
We believe for all these reasons that expelling the Sigma Chi Fraternity permanently is both
unjust and excessive.
Thanks you for your attention to this matter.
Jeff Murison
Chapter Advisor
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O F F I C E OF STUDENT A C T I V I T I E S
November 30, 2004
To the Men of the Class of 2008,
Joining a fraternity gives you the opportunity to participate in numerous leadership, scholastic,
and social activities both on campus and in the Carlisle community.
Dickinson College prides itself on hosting one of the nation's oldest fraternity communities. Dickinson
fraternity members are continually recognized for their involvement, academic achievement, leadership and
community service. Membership in a fraternity may greatly enhance your Dickinson experience.
Fraternities offer friendship, common values, opportunities and enthusiasm. The Dickinson College
Interfraternity Council consists of six fraternities (Delta Sigma Phi, Phi Delta Theta, Phi Kappa Psi, Phi Kappa Sigma,
Sigma Alpha Epsilon and Theta Chi) each offering opportunities to grow academically, morally, and socially.
Fraternities were originally established to compliment formal education and to help men develop into well rounded
members of society.
Fraternity membership at Dickinson begins with the formal recruitment process. Participating in the
recruitment process does not obligate you to join a fraternity. It provides an opportunity for you to learn more about
fraternity life. During the fraternity recruitment process we strongly encourage you to ask as many questions as you
can. Doing this will help you understand what each fraternity has to offer and which one best fulfills your needs and
interests. Things to ask about during the recruitment process include: academic achievement, community service,
social events, career networking and how each fraternity is involved in campus life. There are many opportunities for
involvement at Dickinson and we believe that fraternity membership is one that helps you to be a better student and
person. Please check out www.fratemityinfo.com to learn more about the fraternity experience.
If you are interested in receiving more information about the fraternity recruitment process and/or registering
for recruitment, please send an e-mail message to Mr. Jason Feiner, Director of Fraternities at ifc@dickinson.edu.
He will then send you a brochure with information about the College's fraternities and the recruitment process in
addition to a recruitment registration form. Fraternity recruitment is scheduled to begin with an orientation
session on Wednesday, February 2, 2005 at 6:00pm In Althouse Hall Room 108. Please submit your request
to Mr. Feiner by Wednesday, January 26, 2005 so that you will have enough time to review the brochure,
develop a list of questions and submit your registration form and fee.
If you have any questions regarding Dickinson's fraternities, please feel free to contact us at
kellyr@dickinson.edu or alexanad@dickinson.edu.
Fraternally,
S114 Adam
Rudy Kelly Adam Alexander
Interfraternity Council President Interfraternity Council Recruitment Chair
Notice
Two fraternities have recently lost their recognition with the College: Kappa Sigma Fraternity and Sigma Chi Fraternity and may be
operating sub rose or underground. It has been determined that these organizations have interfered with the Academic Mission and
Community's Standards of the College. All students are discouraged from affiliating and/or associating with these organizations.
Students who do choose to affiliate and/or associate themselves with one of these organizations may subject themselves to action
from the College's Community's Standards since these organizations operate outside College policy and regulation.
Holland Union Building PHONE 717-245-1671 Thefirst college chartered in
Dickinson College FAX 717-245.1899 the newly recognized nation
P.0,Box1773 wES www.dickinson.edu September A 1783
Carlisle, Pennsylvania 17013-2896
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O F F I C E OF S T U D E N T A C T I V I T I E S
December 3, 2004
To the Men of the Class of 2008,
A few days ago, you received a letter dated November 30, 2004 from Rudy Kelly, Interfraternity
Council President, and Adam Alexander, Interfraternity Council Recruitment Chair, that letter
contained a "Notice" prepared by the Office of Student Activities. The Notice contained
erroneous information and needs to be clarified. Please consider the following Notice in place
of the one contained in the letter dates November 30, 2004:
Kappa Sigma Fraternity and Sigma Chi Fraternity are no longer recognized by Dickinson
College. There is no current affiliation between either fraternity and the College. Consequently,
these organizations are barred from participating in the College's recruitment process to attract
new members to fraternities. The College supports the recruitment efforts of the recognized
organizations only. If you choose to pursue membership in a fraternity, we encourage you to
look to the recognized fraternities only.
Dickinson College respects the right of each student to choose to affiliate with organizations of
his own choosing on or off-campus. There are no consequences under the Community's
Standards based upon the decision to affiliate or join any particular off-campus organization.
We apologize for any confusion our earlier message may have caused..
/Asst. ly,
M. Feiner
irector of Student Activities & Director of Fraternities
Holland Union Building PHONE 717-245-1671 Thefirst college chartered in
Dickinson College FAX 717-245-1899 the newly recognized nation
P.D. Box 1773 wee w .dickinson.edu September 9, 1783
Carlisle, Pennsylvania 17013-2896
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QFFICE OF TUE. DEAN OF STUDENTS
DIVISION OF STUDENT LIFE
February 1, 2006
To the members of the Omicron Chapter of Sigma Chi
Jeremy Lyon Josh Erhardt Michael Ciatto
Andrew Reisig Mark Harrison Christopher Harris
Joseph Kelley Jason Klepic Alex Holmes
Patrick Cortese Wesley McCoy Nick Peper
Patrick Coyle Graham Rockwell Ricky Reed
Chris Cresci Patrick Sheahan Steven Reid
Concurrently with this message, you have been provided with the message to the first year men
of Dickinson College and their parents which explains the College's position on membership in
an expelled or unrecognized organization. There is no mistake about where Dickinson College
stands on this issue. Membership in such organizations is not tolerated. For the one man who
was admitted to Sigma Chi before its expulsion, continued activity in the expelled Chapter,
particularly with respect to recruiting and initiation of new members, is equally forbidden.
To the extent that this standard may not have been as clearly stated earlier, there is no doubt in
the College's mind that based upon the many conversations which have occurred between the
College and the Omicron Chapter following its expulsion, including its alumni, you have known
that membership in Sigma Chi was not approved by the College and that recruiting and
engaging in membership activities on our campus was absolutely banned.
We are, therefore, advising you of the College's position with respect to you in particular. Due
to the lack of clarity on the extent of the potential consequences of membership in Sigma Chi to
this date, the current members of the banned Omicron Chapter of Sigma Chi are advised that
no member will be suspended or expelled by Dickinson College based solely on his decision to
join Sigma Chi in or before 2005. Any new members admitted in 2006 will be subject to the
policy stated in the accompanying message.
Having granted you this assurance, each member is also advised that any privileges afforded by
Dickinson College to its students are immediately subject to being withheld or withdrawn from
members of the banned organization. Each one of these privileges at risk is within the
discretion of the College to grant or to withhold. Such privileges include the bestowing of
academic honors (including Dean's List), receiving letters of recommendation from the College,
acting as an official representative of the College (including participating in intercollegiate
athletics, and working as members of Residential Life staff or Admissions Office tour guides),
and eligibility for merit-based financial aid (whether new or renewal of previous awards). There
are also academic honorary societies on Dickinson's campus which have a good character
component to their individual selection criteria, and you should be aware that membership in a
The first college chartered in the newly recognized nation • September 9, 1783
HO. BOX 1773 • CARLISLE, PENNSYLVANIA 17013-2896 - PHONE. 717-245-1639 ' FAX: 717245-8944 ' WEB: www.dicl(IBSOR.edu
banned organization may be taken into account by these organizations in extending invitations
to membership, as well.
Further, should Dickinson discover any recruiting or membership activities by Sigma Chi from
this day forward, the current members of Sigma Chi will face immediate expulsion from the
College.
Finally, nothing in this message excuses your individual responsibility from otherwise complying
with the policies and procedures of Dickinson College.
I am more than happy to meet with you individually or collectively to discuss this situation
further. If you would like to meet, please contact me at 717-245-1556 or
malonem(o)dickinson.edu.
Si cccerreelly,,
?MJichaeB. Lon e
Acting Dean of Students
Cc: Mark V. Anderson, Sigma Chi Executive Director
Don Zane, Omicron Chapter Alumnus
Lon Haines, Omicron Chapter Alumnus
Bill Sapoch, Omicron Chapter Alumnus
Jeff Murison, Omicron Chapter Alumnus
OFFICE OF THE DEAN OF STUDENTS
DIVISION OF STUDENT LIFE
February 1, 2006
To the Men in the Class of 2009
To the Parents of the Men in the Class of 2009
Recently, you received a letter informing you about the opportunity to participate in
Greek Life at Dickinson College. Included with this information was a notice that
affiliation with an organization not in good standing with the College could have adverse
consequences for the individual making this choice. A number of questions about the
meaning of this notice have been received. This message is intended to explain and
clarify the College's position.
The mission of Dickinson College is to prepare young people, by means of a useful
education in liberal arts and sciences, for engaged lives of citizenship and leadership in
the service of society. The College's residential living-learning environment has a
distinctive role in the preparation for lives of engagement and high accomplishment. In
order to create and maintain the best conditions for achieving our mission, the College
provides and promotes a residential community of learners that is safe, inclusive, and
welcoming. Organizations that operate on this campus do so within a framework that
allows the College to direct, guide and counsel students through an educational process
on the journey toward citizen-leadership.
The oversight of Greek organizations provided by the College improves the responsible
governance of each group and increases the health of the Greek system by defining
and clarifying expectations, rights, and responsibilities of all participants. The
recognized Greek organizations themselves play a significant and vital role in
supporting and sustaining the system.
Prior to the drafting of this letter, College officials met with the leadership of the
Interfraternity Council (IFC). In the course of the meeting, IFC members
(representatives of the recognized campus fraternities) expressed considerable concern
regarding the operation of unrecognized fraternities. The issues raised in this letter,
including the consequences noted, are congruent with the issues raised by the IFC and
a forthcoming IFC resolution.
With recognition, the College is also able to address incidents or patterns of negative
behavior on the part of Greek organizations. Even in this context, there are educational
opportunities for reforming conduct and inspiring leadership.
The firs[ college chartered in the newly recognized nation • September 9. 783
P.O. BOX 1773 - CARLISLE, PENNSYLVANIA 17013-2896 - PHONE: 717-245-1639 . PAX: 717-245-8944 • WE8: w .dickinsci 1Rdu
Those organizations which are not recognized by the College deny students the
residential educational experience that characterize the Dickinson fraternities and
sororities and Interfere with the College's mission of a residential educational
experience. Fraternities or sororities which have been expelled not only lack the
standards required by the College for safe, responsible leadership, they have been
judged by the College to fall below these standards. Such judgment is never reached
lightly.
Consequently, when students choose to join unrecognized Greek organizations or
organizations which have been expelled or suspended by the College, their individual
actions run contrary to the College's educational objectives. Their participation in these
organizations does not offer the educational opportunities provided by College
recognized organizations and their membership threatens the integrity of the College
system.
Students who choose to join banned, suspended or unrecognized organizations or
colonies fail to comply with previously communicated expectations of the College. To
the extent that the prohibition on joining unrecognized fraternities, sororities or colonies
of such organizations was not clearly understood, let this memo clarify the issue.
Membership in an unrecognized, expelled or suspended fraternity or sorority or
affiliation with colony of any such organization is not permitted' The typical
sanctions for such membership or affiliation are suspension or expulsion from Dickinson
College.
We trust that this message clarifies the College's position on why there are
consequences for individuals who choose to join suspended, expelled or unrecognized
Greek organizations. Should you have any remaining concerns, please feel free to
contact me at 717-245-1556 or malonem@dickinson.edu.
Respectfully,
il Malone
Acting Dean of Students
k The recognized fraternities at Dickinson College currently are Delta Sigma Phi, Phi
Delta Theta, Phi Kappa Psi, Phi Kappa Sigma, Sigma Alpha Epsilon, and Theta Chi.
No organization has been granted authority to colonize.
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02/05/2006 12:05 9545250023 C L ASSOCIATES PAGE 02
QPPIfa op THE DeAH AP STJGUxrl
DIVISION OP STIIDDNT LI PII
February 6, 2008
To the members of the Omicron Chapter of Sigma Chi
Jeremy Lyon Josh Erhardt Michael Ciatto
Andrew Reisig Mark Harrison Chrisloptw Harris
Joseph Kelley Jason-Klepee Alex Holmes
Patrick Cortese Wesley McCoy Nick Paper
Patrick Coyle Graham Rockwell Ricky Reed
Chris Creed Patrick Sheehan Steven Reid i
On February 1, 2006, the current membership In Sigma Chi reodved a message advising you of
the College's position with respect to the impact d your dedWon to join $400 Chl, You were
advised that no member will be suspended or expelled by Dickinson College based solely on his
decision to on Sigma Chi in or before. 2045.
You ware also told shat certain privitagea afforded by Dickinson College to its students had
become Insnadlately subject tobeing withheld or withdrawn from members of the banned
organization. The llst of prihileges induded the bestowing of academic honors (ingluding
Dean's. List), receiving letters of recommendation fitim the College, acting as an offidet
represecdativo of the College (Including participating in intarrnotlegiata athletics, and working as
members of Residential Ufa staff or Admission Office tour guiles), and eligibility for merit-
based fnancdal aid (whether new or renewal of previous awards).
Apparently, two remains some confusion about the Collage's previous m wage. We are,
therefore, taking this opportwtity to once again clarify and communicate our position.
Members of Sigma Chi before no expufadon. Those members of Sigma Chi who
joined the organization while it was racognizad by the Collage and in good standing
(nrf@tsr suspended or expeWd). are not subject to discipline or witithdMIng of privileges
based solely on their membership in the fratemily. However, these members lia
ruponal individually and mYectlvaly for any Sigma Chi reauftktg aftdlor membership
aclvtdn Involving Dickinson College students from this point forward. N Sigma Chi
engages in any racrub g or m embamitip activities, each individual mettlbet will be
subject to expulsion for the actlyWaS of the, group. These members also rwriein
responsible for their Individual conduct under the Community Staindatde. (NOTE: This
statement reflects a change from ft massage of February 1, 2006 with rasped t0
privileges)
• ifambare of Sigma Chi derfng fns Suspension or stter hie expubdon. Those
individuals who joined Si" Chi durkV tits peiiod of its suspension or following its
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82/0512006 12:05 9545250023 C L ASSOCIATES
expulsion but before February 2006, are not subject to disdpline or withholding of
privileges based solely on their membership in the fraternity. However, these members
are responsible individually and coltectivety for any Sigma Chi racruftV andior
membership activities involving Dickinson College students from this point forward. If
Sigma Chi engages in any recruiting or membership activities, each Individual member
will be subject to expulsion for the activities of the group. These members also remain
responsible for ttvsir Individual conduct under the Community Standards. (NOTE: This
statement reflects a change from the message of February 1, 2008 with respect to
privileges)
PAGE 03
Collage's position as of Fatirusry 1, 2006. Any student of Dickinson Cottage who
joins an unreoogrtizod fraternity or sorority will be suspended or expelled from Didknson
College. The membership of an unrecognized fraternity or sorority that engages in
recruiting or any other membership activities is subject to expulsion from the College.
g?lri? Chi is an ewailed ?,?liuW fa:ttW';:tpgp sd'
et#orfs fo encourage, your organization to cease operation consistent with the didsion of the
College, you have failed to do so. The failure of Sigma Cht to cease activity can only be
sustained by the actions of Its members.
The continued operation of ft" Chi is )nconsWent with the College's residential living-
learning experience and our expectations for shtdertes assodated with such orgarWations.
Organizations comprised solely of students that operate on the Dickinson campus do so within a
framework that allows the College to direct, guide and couriset students through an educationsll
process on the joumey toward citizen-leadership.
If you have any questions, please contact me at 717-245-1556 or malonamgbdiddnson.%W,
Si ?rety,
Yl
Michael S. e
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• Enhance the extra and co-curricular programs of the College and
contribute to the life of the campus through participation in and
support of programs and activities.
` Provide structured opportunities for self-governance, leadership
and management skill development.
• Serve as a vehicle to involve students In service to the College
and Carlisle communities.
Provide the opportunity for career and professional networking.
Foster a life-long affiliation with Dickinson College.
sn. Each semester, all fraternities and sororities are required to submit a
Gold Star Accreditation report, and every spring all fraternities and
sororities are required to submit their President's Cup Evaluation report
as directed by the Office of Greek Life. This on-going accreditation and
evaluation process creates opportunities for the College to communicate
to each fraternity and sorority the College's expectations, areas of
excellence, and areas that need improvement. The basis of this process
is to create an environment for conversation, trust and support between
the the College and its fraternities and sororitles to insure success for all
c? involved.
Students' Rights as Citizens
College students are both members of the academic community and
citizens. As citizens, stude" hts should enjoy the same freedom of speech,
peaceable assembly, and right of petition that other citizens enjoy. The
College shall not inhibit such intellectual and personal development of
students as may be prompted by their exercise of these rights both on
and off campus.
Students who violate the law may incur penalties prescribed by civil
authorities. College authority shall never be used merely to duplicate the
function of civil laws; only where the College community's pursuit of its
educational objectives is distinct, and clearly involved, shall Its special
authority be asserted. The student who, in the course of his or her off-
campus activities, incidentally violates College regulations (such as those
relating to course assignments) shall be subject to no greater penalty
than would normally be imposed on campus. College action shall be
independent of community pressure.
The College shall clarify those general' standards of behavior which it
considers essential to its educational objective and its community life.
These general behavioral expectations and the resultant specific
regulations shall represent a reasonable regulation of student conduct in
areas which have persuasive relevance to the educational aim of the
College. Students detected or arrested in the course of violations of
College regulations or infractions of ordinary law shall be informed of
their rights. No form of harassment shall be used to coerce admissions of
guilt or information about the conduct of other suspected persons.
Unless convicted on charges brought against him or her, a student shall
not have his or her status altered nor shall his or her right to be present
on the campus and to attend classes be suspended, except for reasons of
J individual or community safety.
^J 63
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Dickinson College
Page 1 of 1
Student Rights and Responsibilities
College students are both members of the academic community and citizens. As citizens, students should enjoy the same free
speech, peaceable assembly, and right of petition that other citizens enjoy. The College shall not inhibit such intellectual and p
development of students as may be prompted by their exercise of these rights both on and off campus.
http://www.dickinson.edu/student/code.html 4/7/2006
Dickinson College Page 1 of 1
STATEMENT OF PRINCIPLES
Citizen-Leaders - A defining characteristic of members of the Dickinson College community.
To prepare our students to be active, engaged citizens of the world and to educate them for positions of leadership in their corn
nation, and around the globe is a strategic objective of this College. Dickinson's definition of citizenship, drawn from the Colleg
the American Revolutionary era, centers on using its own community to instill habits of independence (as formed by the interp
freedom and responsibility), self-governance, respect for and service to ideals greater than the individual self, and recognition
education advances citizenship and substantive professional and personal contributions to society. (Dickinson College, Strat
2000)
http;//www.dickinson.odu/student/code.htmi 4/7/2006
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\EiRama
I, Joshua R Erhardt, hereby verify that the aver nerrt s set forth i n t he w t hi n
Gird ai I ar e t r ue and car r ect t o t he best of ny knoW edge, i rf or rat i on and bel i of .
I urder st and t hat f al se st at event s coat ai ned her ei n ar a sL4 ect t o t he
peril t i es of 18 Pa. CSA Sad i on 4904 rel at i rig t o unsm n f al si f i cat i on t o
aut hor i t i es.
Erhardt
.Joshua R cm ed 5 -? /?'
N&I R OUl CN
1, M camel 0 at t o, hereby verify that the aver ruts set f or t h i n t he vii t hi n
Qx* ai nt ar e t r ue and cor r act t o t he best of ny knoW edge, i I or rat i on and bel i of .
I Lrder st and t hat f al se st at enent s cont ai red her ei n ar a sL4 ect t o t he
penalties of 18 Pa. CSA 3-ct i on 4904 rel at i rig to unswr n falsification to
au hor i t i es.
M chael Q at t o
Ilk ed
%? y
%offiRamw
1, Jer eny Lyon, hereby verify that the aver rnent s set forth i n the w t hi n
Cbnpl ai nt ar e t r ue and cor r ect t o t he best of ny knoW edga; i rf or rat i on and bel i of .
I under st and t hat f al se st at enent s cont ai ned her ei n ar a sL4 ect t o t he
penalties of 18 Pa CSA Sact i on 4904 r el at i ng to unsm n falsification to
ad hor i t i es.
v?
J Any Lyon
Eked
\ER Rama
1, Patrick Eheahan hereby verify that the aver neat s set forth i n t he w t hi n
CYd ai rt ar e t r ue and cor r ect t o t he best of ny knoW edge, 1 of or rat i on and bel i of .
I under st and t hat f al se st at enent s oont ai ned her ei n ar a sL4 ect t o t he
penalties of 18 Pd CSA Sact i on 4904 r el at i ng to Unswr o falsification to
aut hor i t i es.
1?2
Pat r i do Sheahan
cat ed <'- /o 166
VEi R OKII UJ
1, Pl ex VMi t ney hereby verify that the aver nent s set forth i n the vi t hi n
axo ai nt ar e t r ue and cor r eat t o t he best of ny knu* edgge? i d or rat i w and bel i of.
I u xler st and t hat f al se st at enent s oortt ai ned her ei n ar a st4 eat t o t he
penalties d 18 RL CSA Section 4904 r el at i ng to usvao falsification to
aut hor i t 1 es.
A ex VW tney
oat Ed 1?- / -?-/ 0 6
\EiAOMCV
1, ?0u ?Y1CtY1 l? , a I egal represerd at i ve of t he Cmcron Chapter of
t he S grha Chi R at er rr t y hereby verify that the a v e r rents set forth i n t he W t hi n
mrrpl ai rd ar e t r ue and cor r ect t o t he best of ny knorF edge, i rif or rat i on and bel i of.
I under st and t hat f al se st at erwit s cord al ned her ei n ar a sL4 ect t o t he
penalties of 18 Pa. CSA S ct i on 4904 r el at i rig to unsw o falsification to
aut hor i t i es.
Cm cr on Chapter of 3 gna Chi
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IN THE COURT OF COMMON PLEAS OF THE COMMONWEALTH OF PENNSYLVANIA
IN AND FOR CUMBERLAND COUNTY
JOSHUA R.ERHARDT
511 MARKEYs ROAD
RUFFSDALE, PA 15679
AND
MICHAEL CIATTO
1008 HILLDALE COURT
READING, PA 19605
AND
JEREMY LYON
100 NORTH 67TH STREET
HARRISBURG, PA 17111
AND
PATRICK SHEAHAN
24 KNOLL CIRCLE
SOUTH BURLINGTON, VT 05403
AND
ALEX WHITNEY
77 COOLIDGE ROAD
CONCORD, MA 01792
AND
OMICRON CHAPTER OF SIGMA CHI
FRATERNITY
226 VERBEKE STREET
HARRISBURG, PA 17102
PLAINTIFFS,
V.
DICKINSON COLLEGE
P.O. Box 1773
CARLISLE, PA 17013
DEFENDANT.
CASE NO.: 06-2647 CIVIL TERM
MOTION FOR ADMISSION PROHAC
VICE
MOTION FOR ADMISSION PRO HAC VICE
Comes now, Kevin Canavan, Esquire and Swartz Campbell LLC, counsel for Plaintiffs,
Joshua R. Erhardt, Michael Ciatto, Jeremy Lyon, Patrick Sheahan, Alex Whitney and Omicron
Chapter of the Sigma Chi Fraternity, and hereby move this Court for admission Pro Hac Vice of
attorneys Timothy M. Burke and Daniel J. McCarthy as co-counsel for the Plaintiffs, Joshua R.
Erhardt, Michael Ciatto, Jeremy Lyon, Patrick Sheahan, Alex Whitney and Omicron Chapter of
the Sigma Chi Fraternity, in the above-captioned matter for the following reasons;
1. Kevin J. Canavan, a member in good standing of the Bar of the Commonwealth of
Pennsylvania, and an attorney of record in the above-captioned case makes this motion
on behalf of the Plaintiffs.
2. Plaintiffs have retained Timothy M. Burke and Daniel J. McCarthy of the law
offices of Manley Burke to serve as counsel in this matter due to their experience and
expertise in fraternal law.
3. Timothy M. Burke is a partner with the law firm of Manley Burke and a verified
statement of Timothy M. Burke to be admitted Pro Hac Vice is attached hereto and
marked as Exhibit A.
4. Daniel J. McCarthy, Esquire is an associate with the law firm of Manley Burke
located at 225 West Court Street, Cincinnati, OH 45202. A verified statement of Daniel
J. McCarthy to be admitted Pro Hac Vice is attached hereto and marked as Exhibit B.
5. Attached hereto as Exhibit C is a photocopy of Bar cards for Daniel J. McCarthy
and Timothy M. Burke.
6. Mr. Burke and Mr. McCarthy acknowledge that they will be subject to the rules of
the Supreme Court of the Commonwealth of Pennsylvania and the Rules of the Common
Pleas Court of Cumberland County.
2
7. The Plaintiffs request that this Court admit Timothy M. Burke as an attorney Pro
Hac Vice and Daniel J. McCarthy as an attorney Pro Hac Vice to assist its Pennsylvania
counsel by participating in discovery, trial preparation and trial of the case which is
pending before this Honorable Court.
WHEREFORE, Plaintiffs, request that this Court grant the admission Pro Hac Vice of
attorneys Timothy M. Burke and Daniel J. McCarthy and grant them leave to act as
additional counsel in all matters pertaining to this case.
Respectfully
Kevin Canavan
Thomas Ollason
SWARTZ CAMPBELL
1601 Market Street, Floor 34
Philadelphia, PA 19103
Telephone: (215) 564-5190
Facsimile: (215) 299-4301
Email: kcanavan@swartzcampbell.com
N:\CLIENTS\SIGMACHI\Dickinson College\Pleadings\Joint Motion to Appear Pro Hoc Vice. DJM.doc-tkd
3
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VERIFIED STATEMENT OF TIMOTHY M. BURKE TO BE ADMITTED PRO Hoc VICE
Timothy M. Burke hereby certifies:
1. He is a member in good standing of the Bar of the State of Ohio with the Bar No.
0009189;
2. He has never been suspended, disbarred, or otherwise disciplined in his role as an
attorney;
3. He is not subject to any current disciplinary proceedings;
4. He is participating in one action in the Court of Common Pleas for Cumberland
County and that he has never previously applied for admission pro hoc vice in Pennsylvania
before;
5. He will comply with and be bound by the ethical statutes, case law and procedural
rules of the Commonwealth of Pennsylvania, including the Pennsylvania Rules of Professional
Conduct;
6. He will submit to the jurisdiction of the Pennsylvania courts and the Pennsylvania
disciplinary board with respect to acts of omissions occurring during the appearance of the
matter for which admission pro hoc vice is being sought; and
7. He consents to the appointment of Kevin Canavan as the sponsor and the agent
upon whom service of process shall be made for all actions, including disciplinary actions, that
may arise out of the practice of law in the matter for which admission pro hoc vice is sought.
Respectfully submitted,
Timothy urke
MAN BURKE
A L GAL PROFESSIO AL ASSOCIATION
225 West Court Street
MANLEY BURKE 225 WEST COURT STREET
CINCINNATI 45202.1098
A LEGAL PROFESSIONAL ASSOCIATION (513) 7215525
F. No. (513) 7214268
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VERIFIED STATEMENT OF DANIEL J. MCCARTHY TO BE ADMITTED PRO HOC VICE
Daniel J. McCarthy hereby certifies:
1. He is a member in good standing of the Bar of the State of Ohio with the Bar No.
0078388;
2. He is a member of good standing of the Bar of Illinois with the Bar No. 6279274;
3. He is a member of good standing of the Bar of Missouri with the Bar No. 53842;
4. He has never been suspended, disbarred, or otherwise disciplined in his role as an
attorney;
5. He is not subject to any current disciplinary proceedings;
6. He is participating in one action in the Court of Common Pleas for Cumberland
county and that he has never previously applied for admission pro hoc vice in Pennsylvania
before;
7. He will comply with and be bound by the ethical statutes, case law and procedural
rules of the Commonwealth of Pennsylvania, including the Pennsylvania Rules of Professional
Conduct;
8. He will submit to the jurisdiction of the Pennsylvania courts and the Pennsylvania
disciplinary board with respect to acts of omissions occurring during the appearance of the
matter for which admission pro hoc vice is being sought; and
9. He consents to the appointment of Kevin Canavan as the sponsor and the agent
upon whom service of process shall be made for all actions, including disciplinary actions, that
may arise out of the practice of law in the matter for which admission pro hoc vice is sought.
MANLEY BURKE
A LEGAL PROFESSIONAL ASSOCIATION
225 WEST COURT STREET
CINCINNATI 45202-1098
15131]21.5525
FA No. (513) 7214268
Respectfully submitted,
Telephone: (513) 721-5525
Facsimile: (513) 721-4268
Email: dmccarthy@manleyburke.com
N:\CLIENTS\SIGMACHI\Dickinson College\PleadingsWerified Statements. DJM.doc-tkd
MANLEY BURKE 225 WEST COURT STREET
CINCINNATI 45202-1098
A LEGAL PROFESSIONAL ASSOCIATION 15131121.5525
Ea No (5131721.42M
A LEGAL PROFESSIONAL ASSOCIATION
225 West Court Street
Cincinnati, Ohio 45202
?x?tib? ? C.
05/18/2006 13:59 FAX 5137214268 MANLEY BURKE 2002
THE SUPREME COURT of OHIO
Daniel James McCarthy
Registration No.'
THE SUPREME COURT Of OHIO ..7
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IN THE COURT OF COMMON PLEAS
• OF CUMBERLAND COUNTY, PENNSYLVANIA
JOSHUA R. ERHARDT, MICHAEL
CIATTO, JEREMY LYON, PATRICK CIVIL ACTION
SHEAHAN, ALEX WHITNEY, and
OMICRON CHAPTER OF SIGMA CHI No. 2006-2647
FRATERNITY,
Plaintiffs
V.
DICKINSON COLLEGE,
Defendant
NOTICE TO PLEAD
TO: JOSHUA R. ERHARDT, MICHAEL CIATTO, JEREMY LYON, PATRICK SHEAHAN,
ALEX WHITNEY and OMICRON CHAPTER OF SIGMA CHI FRATERNITY
You are hereby notified to file a written response to the within New Matter pursuant
to Pa.R.C.P. No. 2252(d) within 20 days from service hereof or a judgment may be entered
against you.
DICKINSON COLLEGE
By A cps
Dana Scaduto, General Counsel
Dickinson College
I.D. No. 41260
P.O. Box 1773
College & Louther Streets
Carlisle, PA 17013
(717) 245-1013
McNees, Wallace & Nurick
Elizabeth A. Maguschak
I.D. No. 39853
Kimberly A. Selemba
I.D. No. 93535
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Dated: May 30, 2006 Attorneys for Defendants
I - ".-
IN THE COURT OF COMMON PLEAS
• OF CUMBERLAND COUNTY, PENNSYLVANIA
JOSHUA R. ERHARDT, MICHAEL
CIATTO, JEREMY LYON, PATRICK CIVIL ACTION
SHEAHAN, ALEX WHITNEY, and
OMICRON CHAPTER OF SIGMA CHI No. 2006-2647
FRATERNITY,
Plaintiffs
V.
DICKINSON COLLEGE,
Defendant
DICKINSON COLLEGE'S ANSWER WITH NEW MATTER
Dickinson College ("Dickinson" or "the College"), by and through its attorneys,
McNees Wallace & Nurick LLC, hereby states the following:
1. Admitted in part and denied in part. It is admitted that Plaintiffs Joshua R.
Erhardt, Michael Ciatto, Jeremy Lyon, Patrick Sheahan, Alex Whitney, and Omicron
Chapter of Sigma Chi (the "Chapter") (collectively, "Plaintiffs") filed an action against
Dickinson. It is denied that Dickinson has deprived Plaintiffs of their contractual and
constitutional rights. It is further denied that any action is necessary to enforce the
contractual and constitutional rights afforded Plaintiffs at Dickinson because Dickinson has
not violated any of the Plaintiffs' contractual or constitutional rights.
2. Denied as stated. Plaintiff Joshua R. Erhardt has just completed his Junior
year at Dickinson.
3. Denied as stated. Plaintiff Michael Ciatto just completed his Sophomore year
at Dickinson.
4. Denied. Plaintiff Jeremy Lyon graduated from Dickinson on May 21, 2006.
5. Denied as stated. Plaintiff Patrick Sheahan just completed his Junior year at
Dickinson.
6. Denied as stated. Plaintiff Alex Whitney just completed his First Year at
Dickinson. By way of further answer, after reasonable investigation, Dickinson is without
knowledge or information sufficient to form a belief as to the truth of the remaining
averments of this paragraph and the same are, therefore, denied.
7. Denied. After reasonable investigation, Dickinson is without knowledge or
information sufficient to form a belief as to the truth of the averments of this paragraph and
the same are, therefore, denied.
8. Admitted.
9. Denied. After reasonable investigation, Dickinson is without knowledge or
information sufficient to form a belief as to the truth of the averments of this paragraph and
the same are, therefore, denied.
10. Denied. After reasonable investigation, Dickinson is without knowledge or
information sufficient to form a belief as to the truth of the averments of this paragraph and
the same are, therefore, denied.
11. Admitted in part and denied in part. It is admitted that the Chapter has
continuously existed in Carlisle, Pennsylvania since the Chapter's founding in 1859. It is
admitted that the Chapter has been comprised of Dickinson students since its founding in
1859. After reasonable investigation, Dickinson is without knowledge or information
sufficient to form a belief as to the truth of the averments regarding whether the Omicron
Chapter of Sigma Chi is one of the oldest Sigma Chi chapters in the county, and therefore
denies this averment.
12. Denied. After reasonable investigation, Dickinson is without knowledge or
information sufficient to form a belief as to the truth of the averments of this paragraph and
the same are, therefore, denied.
,1
13. Denied. It is denied that the Chapter maintained a long, productive and
cooperative relationship with Dickinson throughout its history at Dickinson. To the contrary,
for several years preceding its expulsion from the College, Sigma Chi repeatedly violated
the standards of Dickinson College on numerous occasions, with at least thirteen separate
incidents involving violations having occurred during the period from Spring 2003 to Spring
2004. By way of further answer, after reasonable investigation, Dickinson is without
knowledge or information sufficient to form a belief as to the truth of the remaining
averments of this paragraph and the same are therefore denied.
14. Admitted.
15. Denied as stated. In the Fall of 2003, Dickinson required that the Chapter's
alumni conduct a thorough membership review as a result of sanctions imposed for
disciplinary violations by the Chapter.
16. Admitted in part and denied in part. It is admitted that six members of the
Chapter remained after the membership review. After reasonable investigation, Dickinson
is without knowledge or information sufficient to form a belief as to the truth of the remaining
averments of this paragraph and the same are, therefore, denied.
17. Denied. After reasonable investigation, Dickinson is without knowledge or
information sufficient to form a belief as to the truth of the averments of this paragraph and
the same are, therefore, denied.
18. Admitted in part and denied in part. It is admitted that the Chapter received
no pledges during the Spring 2004 Rush. The remaining averments are denied as stated.
By way of further answer, at the time the Chapter engaged in unapproved pledge activities,
during the Spring 2004 semester, the Chapter was unaware that it would have no members
on campus in the Fall 2004 semester.
19. Admitted in part and denied in part. It is admitted that the Chapter requested
permission from Dickinson to pledge a group of nine young men. It is admitted that
Dickinson denied said permission. After reasonable investigation, Dickinson is without
knowledge or information sufficient to form a belief as to the truth of the remaining
averments of this paragraph and the same are, therefore, denied.
20. Admitted in part and denied in part. It is admitted that the Chapter
approached Robert Massa. It is denied that Dr. Massa told the Chapter that the Chapter
would "be pleased with the College's response" if the Chapter obtained a resolution by the
IFC.
21. Admitted in part and denied in part. It is admitted that the IFC passed a
resolution on March 10, 2004 pertaining to the Chapter. The remaining averments of this
paragraph are denied. The document speaks for itself.
22. Admitted in part and denied in part. It is admitted that the Chapter presented
an IFC resolution to the College. It is denied that the College had previously indicated that
the Chapter would be pleased with the College's response if it obtained an IFC resolution.
It is further denied that the College did not respond. To the contrary, Dickinson responded
to the Chapter during its presentation of the IFC Resolution to the Associate Dean of
Students that the College had already made its decision to deny permission to the Chapter
to pledge the group of men and the Resolution did not change that decision.
23. Admitted in part and denied in part. It is admitted that the Chapter initiated a
group of men as full members of the Chapter during the Spring 2004 semester. After
reasonable investigation, Dickinson is without knowledge or information sufficient to form a
belief as to the truth of the remaining averments of this paragraph and the same are,
therefore, denied. By way of further answer, at the time the Chapter engaged in
unapproved pledge activities, during the Spring 2004 semester, the Chapter was unaware
that it would have no members on campus in the Fall 2004 semester. Further, assuming
arguendo that Sigma Chi International did grant the Chapter authority to recruit a new
pledge class, it was without authority to do so. Rules for recruiting new members into
fraternities at the College are established by the College.
24. Denied as stated. It is admitted that in June 2004, Dickinson offered the
Chapter the opportunity to voluntarily remove itself from the College. The remaining
averments of this paragraph are denied as stated.
25. Admitted in part and denied in part. It is admitted that the Chapter declined to
voluntarily remove itself from the College upon offer of compromise by the College. It is
admitted that in the Fall 2004 semester, Jeff Murison met with Dean Ricardo Surita to
discuss the Chapter's situation and that Dean Surita again offered the Chapter the choice of
voluntarily removing itself from Dickinson. By way of further answer, Dean Surita
discussed with Murison the likely sanctions that would follow a hearing based upon the
Chapter's recruiting in violation of College policy, particularly in light of the Chapter's
disciplinary history.
26. Denied as stated. Pursuant to Dickinson's policies and procedures,
Dickinson scheduled a disciplinary hearing for September 2, 2004 to determine whether the
Chapter's recruitment activities in the Spring of 2004 violated the Dickinson College
Fraternity and Sorority New Member Recruitment and Education Guidelines. The
disciplinary hearing was conducted by a hearing board, consisting of two students, two
faculty members and a chairperson.
27. Admitted in part and denied in part. It is admitted that the College refused to
recognize as members of Sigma Chi those students who were initiated in violation of
College policy. It is also admitted that members not recognized by the College were not
permitted to serve as representatives of the Chapter. It is denied that the College refused
to permit the improperly recruited members to participate in the hearing. To the contrary,
the College encouraged the Chapter to have as many such individuals provide information
at the hearing as they might choose and two such members did appear at the hearing.
28. Denied as stated. On September 2, 2004, a disciplinary hearing was held
pursuant to Dickinson's policies and procedures. The disciplinary hearing was presided
over by a hearing board, consisting of two students, two faculty members and a
chairperson. At the conclusion of the disciplinary hearing, the hearing board unanimously
expelled the Chapter from Dickinson for recruiting new members in violation of the
Dickinson College Fraternity and Sorority New Member Recruitment and Education
Guidelines.
29. It is admitted that Dickinson permitted Mr. Murison, the Chapter's Alumni
Advisor, to file an appeal on behalf of the Chapter. By way of further answer, the document
attached as Exhibit A to the Complaint is a writing that speaks for itself, and the Plaintiffs'
characterization thereof is denied.
30. Admitted.
31. It is admitted that the IFC sent a letter to the men of the Class of 2008 about
joining fraternities. By way of further answer, the document attached as Exhibit B to the
Complaint is a writing that speaks for itself, and the Plaintiffs' characterization thereof is
denied.
32. Admitted in part and denied in part. It is admitted that on December 3, 2004,
Jason M. Feiner, Assistant Director of Student Activities and Director of Fraternities, sent a
letter to the men of the Class of 2008. It is denied that the College "quickly backtracked
from the footnote in the November 30, 2004 letter." By way of further answer, the document
attached as Exhibit C to the Complaint is a writing that speaks for itself, and the Plaintiffs'
characterization thereof is denied.
33. Denied as stated. It is admitted that on February 1, 2006, Michael S. Malone,
acting Dean of Students, sent a letter to the members of the Chapter. By way of further
answer, the February 1, 2006 letter is a writing that speaks for itself, and the Plaintiffs'
characterization thereof is denied.
34. The February 1, 2006 letter is a writing that speaks for itself, and the Plaintiffs'
characterization thereof is denied.
35. The February 1, 2006 letter is a writing that speaks for itself, and the Plaintiffs'
characterization thereof is denied.
36. The February 1, 2006 letter is a writing that speaks for itself, and the Plaintiffs'
characterization thereof is denied.
37. Denied as stated. It is admitted that concurrent with the February 1, 2006
letter to the members of the Chapter, Dean Malone sent a letter to the male students of the
Class of 2009 and to the parents of the male students of the Class of 2009. By way of
further answer, the document attached as Exhibit E to the Complaint is a writing that speaks
for itself, and the Plaintiffs' characterization thereof is denied.
38. Denied as stated. It is admitted that on February 6, 2006, Dean Malone sent
a letter to the members of the Chapter. This February 6, 2006 letter clarified the position of
the College regarding student membership in unrecognized fraternities and constituted an
official policy statement of Dickinson, thereby becoming incorporated into the terms of the
relationship between Dickinson and its students. By way of further answer, the letter
attached as Exhibit F to the Complaint is a writing that speaks for itself, and the Plaintiffs'
characterization thereof is denied.
39. Denied. It is denied that the College has interfered with the delivery of United
States mail. It is further denied that Jason Feiner opened any mail sent through the United
States Postal Service to Plaintiff Michael Ciatto. It is also denied that the original letter was
addressed solely to Mr. Ciatto. To the contrary, the original letter was addressed to Michael
Ciatto and the Chapter. By way of further answer, it is the policy of Dickinson that all mail
containing references to any Greek organization in combination with a student's name is
forwarded to the Office of Student Activities, which then distributes the mail through the
Greek organization's mailbox. At the time the letter in question was received, the Chapter
had been expelled from the College and did not have a College mailbox. Mr. Feiner
therefore returned a letter addressed to Mr. Ciatto and the Chapter to the Chapter's billing
company, Omega Financial, Inc. Neither Mr. Feiner nor Dickinson violated any postal laws
in returning the mail to the sender.
40. Admitted in part and denied in part. It is admitted that Plaintiff Michael Ciatto
met the requirements for the College's Dean List for the Fall 2005 semester. It is admitted
that the College initially, but briefly, declined to place Mr. Ciatto on the Dean's List. It is
denied that Plaintiff Michael Ciatto was not on the Dean's List for the Fall 2005 semester.
To the contrary, by letter dated February 15, 2006, Dickinson specifically informed Mr.
Ciatto that he was officially placed on the Dean's List. A notation to this effect also appears
on Mr. Ciatto's transcript. By way of further answer, information on the College's website is
subordinate to the official records of the College. Mr. Ciatto has been aware that he was
officially placed on the Dean's List since February 15, 2006. By way of further answer, after
reasonable investigation the College is without knowledge or information sufficient to
respond to all averments pertaining to another member of the Chapter.
41. Admitted in part and denied in part. It is admitted that Jason Feiner required
that Plaintiff Joshua Erhardt and two other students meet individually with Mr. Feiner, and
that Mr. Feiner emailed Mr. Erhardt and the two other students on the night of April 17,
2006. It is admitted that no notice of the purpose of the meeting was provided. By way of
further answer, no notice of the purpose of the meeting was necessary because the
meeting was not a disciplinary hearing. It is denied that such meeting was scheduled in an
attempt to intimidate Plaintiffs, members of the Chapter, and other students at the College
that may be interested in becoming members of the Chapter.
42. Admitted.
43. Admitted.
44. Admitted. By way of further answer, no explanation of the purpose of the
meeting was required because this meeting was not a disciplinary hearing.
45. Admitted.
46. Admitted.
47. Admitted in part and denied in part. It is admitted that Mr. Feiner required
Plaintiff Erhardt and the Chapter to produce evidence from Sigma Chi International
Fraternity to prove that the Chapter did not have any current pledges. After reasonable
investigation, Dickinson is without knowledge or information sufficient to form a belief as to
the truth of the remaining averments of this paragraph and the same are, therefore, denied.
48. Admitted. By way of further answer, the Student Handbook is only one
communication distributed by the College that details Dickinson's policies and procedures.
Further answering, the Student Handbook is a writing that speaks for itself.
49. Admitted. By way of further answer, the Community Standards is one of
several sources published by the College that contains Dickinson's policies and procedures.
Further answering, the Community Standards is a writing that speaks for itself.
50. Admitted.
51. Admitted.
52. After reasonable investigation, Dickinson is without knowledge or information
sufficient to form a belief as to the truth of the averments of this paragraph and the same
are, therefore, denied.
53. Denied as stated. It is admitted that the Student Handbook contains some of
the College's rules and policies. It is denied that the Student Handbook is the only
communication that contains the College's rules and policies. By way of further answer,
Dickinson's rules and policies are located in several communications, including the
Community Standards, brochures, course offering bulletins and other official statements
distributed by the College, each of which become incorporated into the terms of the
relationship between Dickinson and its students. It is admitted that the Student Handbook
contains a section entitled "Students' Rights As Citizens." By way of further answer, the
Student Handbook is a document that speaks for itself, and the Plaintiffs' characterizations
thereof are denied.
54. Denied as stated. It is admitted that Dickinson publishes Community
Standards and that the Community Standards contains the College's Statement of
Principles. It is denied that the Community Standards is the only communication that
contains Dickinson's policies and procedures. By way of further answer, Dickinson's rules
and policies are located in several communications, including the Student Handbook,
brochures, course offering bulletins and other official statements distributed by the College,
each of which become incorporated into the contract between Dickinson and its students.
By way of further answer, the Community Standards is a document that speaks for itself,
and Plaintiffs' characterization thereof is denied.
55. Paragraph 55 sets forth conclusions of law to which no response is required,
and the same is, therefore, denied.
56. Paragraph 56 sets forth conclusions of law to which no response is required,
and the same is, therefore, denied.
57. It is admitted that there are approximately 2,300 students at Dickinson. After
reasonable investigation, Dickinson is without knowledge or information sufficient to form a
belief as to the truth of the averment that the Chapter currently consists of approximately 18
members, and the same is, therefore, denied.
58 - 71. After reasonable investigation, Dickinson is without knowledge or
information sufficient to form a belief as to the truth of the averments of paragraphs 58
through 71, inclusive, and the same are, therefore, denied.
72. Admitted in part and denied in part. It is admitted that there exists an
endowed and restricted scholarship known as the Lester T. Etter Scholarship. It is denied
that the scholarship belongs to Chapter but rather is a part of the College's endowment. It
is admitted that the alumni of the Chapter make recommendations to the College for awards
from the scholarship according to established eligibility criteria. It is also admitted that the
market value of the fund was slightly over $200,000 as of March 31, 2006. The eligibility
criteria for the Lester T. Etter Scholarship averred by Plaintiffs, however, are denied. With
respect to the remaining averments about Sigma Chi House Fund, after reasonable
investigation, Dickinson is without knowledge or information sufficient to form a belief as to
the truth of the remaining averments of this paragraph and the same are, therefore, denied
73 - 78. After reasonable investigation, Dickinson is without knowledge or
information sufficient to form a belief as to the truth of the averments of paragraphs 73
through 78, inclusive, and the same are, therefore, denied.
FIRST CAUSE OF ACTION
BREACH OF CONTRACT
79. Paragraphs 1-78, above, are incorporated herein by reference as if set forth
in full.
80. Denied as stated. Dickinson extended an offer to Plaintiffs Joshua R.
Erhardt, Michael Ciatto, Jeremy Lyon, Patrick Sheahan, and Alex Whitney to attend
Dickinson College.
81. Paragraph 81 sets forth conclusions of law to which no response is required,
and the same is, therefore, denied.
82. Denied. The Student Handbook and the Community Standards are writings
that speak for themselves and Plaintiffs' characterizations thereof are denied. By way of
further answer, it is denied that the Student Handbook and the Community Standards are
the only communications that relate to the terms of the relationship between Dickinson and
its students.
83. It is denied that the College's recent actions are contrary to its Statement of
Principles to Develop Citizen Leaders.
84. Admitted.
85. Admitted.
86. Paragraph 86 sets forth conclusions of law to which no response is required,
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that the Chapter is an intimate association. It is further denied that the Chapter is an
expressive association. It is further denied that the Chapter is entitled to the right of
freedom of association.
87. Paragraph 87 sets forth conclusions of law to which no response is required,
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that the College threatened students who became members of the Chapter before
February 2006 with expulsion for merely participating in activities related to the Chapter.
The standard for the behavior of such students around recruiting new members was
established and did announce the consequences for such activity. It is denied that Plaintiffs
have been subjected to sanction around this standard since it was established. It is further
denied that Dickinson is violating the terms of its relationship with the student-Plaintiffs.
88. Paragraph 88 sets forth conclusions of law to which no response is required,
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that the College's action do not comport to the basic ideas of fairness, and it is
denied that the College's actions arbitrarily and capriciously disregard its own rules and
regulations.
SECOND CAUSE OF ACTION
BREACH OF CONTRACT
89. Paragraphs 1-88, above, are incorporated herein by reference as if set forth
in full.
90. Denied. Paragraph 90 sets forth conclusions of law to which no response is
required and the same is, therefore, denied.
91. Paragraph 91 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that the policy announced on February 6, 2006, which is the current policy of the
College, withholds or withdraws certain rights, benefits and privileges of students for merely
participating in an unrecognized fraternity. It is further denied that Dickinson breached the
terms of its relationship with the student-Plaintiffs. The College has had no relationship with
the Chapter since the Chapter's expulsion and the allegations of breach of contract with the
Chapter are denied.
THIRD CAUSE OF ACTION
BREACH OF CONTRACT
VIOLATION OF DUE PROCESS
92. Paragraphs 1-91, above, are incorporated herein by reference as if set forth
in full.
93. Denied. Paragraph 93 sets forth conclusions of law to which no response is
required and the same is, therefore, denied.
94. Paragraph 94 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that Dickinson College violated the terms of its relationship with the Plaintiffs by
failing to provide due process. It is further denied that Dickinson violated the terms of its
relationship with the Plaintiffs by failing to follow its own rules and guidelines when it
expelled the Chapter in the Fall of 2004. By way of further answer, Dickinson is a private
institution and is therefore not required to abide by the same due process standards as
those required of state actors by the United States Constitution. Further answering,
Dickinson abided by its procedural safeguards, which Dickinson provided for in its
Community Standards, when it expelled the Chapter in the Fall of 2004. The Chapter was
provided with a fair hearing. Specifically, at the September 2, 2004 disciplinary hearing of
the Chapter, the Chapter was permitted to offer information for consideration by the hearing
board and was allowed to have a legitimately recruited member available to represent the
Chapter but none was available to the Chapter. Further, the hearing was held before a
hearing board, consisting of two students, two faculty members and one chairperson. The
hearing board's decision to expel the Chapter was unanimous.
95. Paragraph 95 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that the discipline hearing in the Fall of 2004 was arbitrary and capricious. It is
further denied that Dickinson failed to follow its own rules and regulations at the discipline
hearing. It is also denied that Dickinson failed to provide fundamental fairness or due
process. By way of further answer, Dickinson is a private institution and is therefore not
required to abide by the same due process standards as those required of state actors by
the United States Constitution. Further answering, Dickinson abided by its procedural
safeguards, which Dickinson provided for in its Community Standards, when it banned the
Chapter in the Fall of 2004. Specifically, at the September 2, 2004 disciplinary hearing of
the Chapter, the Chapter's conduct was reviewed by a hearing board, consisting of two
students, two faculty members and one chairperson. The hearing board's decision to expel
the Chapter was unanimous.
FOURTH CAUSE OF ACTION
VIOLATION OF DUE PROCESS
96. Paragraphs 1-95, above, are incorporated herein by reference as if set forth
in full.
97. Paragraph 97 sets forth conclusions of law to which no response is required,
and the same is, therefore, denied. To the extent that a response is deemed necessary, it
is denied that Dickinson violated Plaintiff Erhardt's rights by failing to provide due process
when it required Plaintiff Erhardt to attend a meeting on April 18, 2006 with Jason Feiner. It
is further denied that Dickinson failed to follow its own rules and guidelines by requiring
Plaintiff Erhardt to attend a meeting on April 18, 2006 with Jason Feiner.
98. Paragraph 98 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that Dickinson failed to provide fundamental fairness and due process by requiring
Plaintiff Erhardt to attend a meeting with Jason Feiner on April 18, 2006. By way of further
answer, the meeting was not a disciplinary hearing, and there was no determination of
"innocence" or "guilt" to be made at the meeting, and Plaintiff Erhardt suffered no harm as a
result of the meeting.
FIFTH CAUSE OF ACTION
INVASION OF PRIVACY
99. Paragraphs 1-98, above, are incorporated herein by reference as if set forth
in full.
100. Paragraph 100 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that students at Dickinson possess an unqualified expectation of privacy.
101. Paragraph 101 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
admitted that Dickinson College distributes mail in compliance with applicable United States
Postal Service rules and regulations. The remaining averments of this paragraph are
denied.
102. Paragraph 102 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that Dickinson violated 18 U.S.C. § 1701. It is denied that Jason Feiner intercepted
or interfered with Plaintiff Michael Ciatto's mail. The mail in question was addressed to the
Dickinson College address and was received by the College at its address and then
redistributed by the College to the addressees. It is further denied that Jason Feiner
opened any mail sent through the United States Postal Service to Plaintiff Michael Ciatto.
To the contrary, Mr. Feiner never opened any mail addressed to Michael Ciatto. It is also
denied that the original letter was addressed solely to Mr. Ciatto. To the contrary, the
original letter was addressed to Michael Ciatto and the Chapter. By way of further answer,
it is the policy of Dickinson that all mail containing references to any Greek organization is
forwarded to the Office of Student Activities, which then distributes the mail to the Greek
organization's individual mailbox for further redistribution by the organization to its
members. Because the Chapter had been expelled by the College, there was no
organizational mailbox for it in the Office of Student Activities. Consequently, Mr. Feiner
returned a letter addressed to Mr. Ciatto and the Chapter to the Chapter's billing company,
Omega Financial, Inc. Neither Mr. Feiner nor Dickinson violated any postal laws in
returning the mail to the sender.
103. Paragraph 103 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that Dickinson's actions constitute an invasion of Plaintiff Michael Ciatto's privacy
rights.
104. Paragraph 104 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that the College's actions violate Plaintiffs' rights of privacy. By way of further
answer, Dickinson supports its students' membership in organizations that are not affiliated
with the College. Dickinson, as a private institution, is afforded great deference in its policy-
making decisions regarding its own affiliation with various organizations and Dickinson
chooses not to associate with unrecognized fraternities outside its residential educational
environment, and particularly those which have become unrecognized through expulsion for
behavior inconsistent with the educational mission o f the College. In advancing its
educational objectives, Dickinson has determined that student membership in unrecognized
organizations is inconsistent with its residential educational philosophy for fraternities, and
the College is within its rights as a citizen protected by the U.S. Constitution to establish and
enforce rules and policies consistent with its mission.
SIXTH CAUSE OF ACTION
VIOLATION OF HIGHER EDUCATION AMENDMENT ACT OF 1998
20 U.S.C. § 1011A
105. Paragraphs 1-104, above, are incorporated herein by reference as if set forth
in full.
106. Paragraph 106 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. By way of further answer, the Higher Education Act of
1965, as amended by the Higher Education Amendments of 1998, is merely a "sense of
Congress," or non-binding guideline, that reflects Congress' views and recommendations
concerning student free expression rights. It is not binding on the College.
107. Paragraph 107 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. By way of further answer, the Higher Education Act of
1965, as amended by the Higher Education Amendments of 1998, is merely a "sense of
Congress," or non-binding guideline, that reflects Congress' views and recommendations
concerning student free expression rights. It is not binding on the College.
108. Paragraph 108 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. By way of further answer, the Higher Education Act of
1965, as amended by the Higher Education Amendments of 1998, is merely a "sense of
Congress," or non-binding guideline, that reflects Congress' views and recommendations
concerning student free expression rights. It is not binding on the College. By way of
further answer, College denies that the conduct of Plaintiffs is "protected association" under
the U.S. Constitution, Amendments 1 and 14, and proof thereof is demanded.
109. Paragraph 109 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. By way of further answer, the Higher Education Act of
1965, as amended by the Higher Education Amendments of 1998, is merely a "sense of
Congress," or non-binding guideline, that reflects Congress' views and recommendations
concerning student free expression rights. It is not binding on the College. By way of
further answer, Dickinson denies that the conduct of Plaintiffs is "protected speech" under
the U.S. Constitutions, Amendments 1 and 14, and proof thereof is demanded.
110. Paragraph 110 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. By way of further answer, the Higher Education Act of
1965, as amended by the Higher Education Amendments of 1998, is merely a "sense of
Congress," or non-binding guideline, that reflects Congress' views and recommendations
concerning student free expression rights. It is not binding on the College.
111. Paragraph 111 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that the student-Plaintiffs have been threatened with "official sanction" by Dickinson.
It is further denied that Dickinson has taken any action with respect to Chapter to which this
averment is applicable and proof thereof is demanded. It is further denied that the Plaintiffs
have a protected right of association or speech as against Dickinson. To the contrary,
Dickinson is a private institution and is therefore not a state actor, subject to the First
Amendment to the United States Constitution. By way of further answer, the Higher
Education Act of 1965, as amended by the Higher Education Amendments of 1998, is
merely a "sense of Congress," or non-binding guideline, that reflects Congress' views and
recommendations concerning student free expression rights.
It is not binding on the College.
112. Paragraph 112 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. By way of further answer, the case cited by Plaintiffs is
entirely inapplicable to this case.
SEVENTH CAUSE OF ACTION
DECLARATORY JUDGMENT
42 Pa. C.S.A. § 7532
113. Paragraphs 1-112, above, are incorporated herein by reference as if set forth
in full.
t
114. Paragraph 114 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that there currently exists a real controversy between the Parties.
115. Paragraph 115 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that speedy relief from this Court is necessary to preserve the rights of the Parties.
116. Paragraph 116 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that Plaintiffs are entitled to declaratory judgment, and it is denied that Dickinson has
breached the terms of its relationship with the Plaintiffs. By way of further answer,
Dickinson has abided by the terms of its relationship with the Plaintiffs at all times.
EIGHTH CAUSE OF ACTION
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF
117. Paragraphs 1-116, above, are incorporated herein by reference as if set forth
in full.
118. Paragraph 118 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that Dickinson is threatening real and immediate disciplinary actions against the
members of the Chapter.
119. Admitted in part and denied in part. The February 6, 2006 letter attached as
Exhibit F to the Complaint is incorporated herein by reference. It is denied that Dickinson
has threatened immediate expulsion to any individual student-Plaintiff.
120. Paragraph 120 sets forth conclusions of law to which no response is required
and the same is, therefore, denied. To the extent a response is deemed necessary, it is
denied that Plaintiffs are entitled to immediate preliminary injunction.
WHEREFORE, Defendant Dickinson College requests that this Court grant judgment
in its favor and against Plaintiffs Joshua R. Erhardt, Michael Ciatto, Jeremy Lyon, Patrick
Sheahan, Alex Whitney and Omicron Chapter of Sigma Chi Fraternity, together with costs
and any other relief that this Court deems just.
NEW MATTER
121. Dickinson incorporates herein by reference Paragraphs 1 through 120 of its
Answer with New Matter and Counterclaims.
122. Plaintiffs have failed to state a claim upon which relief can be granted against
Dickinson for breach of contract.
123. The Chapter has no standing to assert any claim for breach of contract
because the Chapter did not enter into any contract, either express or implied, with
Dickinson.
124. Dickinson did not breach any contract with the Chapter because Dickinson
did not enter into any contract, either express or implied, with the Chapter.
125. Plaintiffs have failed to state a claim upon which relief can be granted against
Dickinson for violation of due process.
126. Plaintiffs' Fourth Cause of Action, violation of due process, should be
dismissed because Dickinson was not required to provide notice of the purpose of the
meeting between Plaintiff Erhardt and Jason Feiner as this meeting was not a disciplinary
meeting.
127. Plaintiffs have failed to state a claim upon which relief can be granted against
Dickinson for invasion of privacy.
128. Plaintiffs have failed to state a claim upon which relief can be granted against
Dickinson for violation of the Higher Education Amendment Act of 1998, 20 U.S.C. § 1011A.
I
129. The Higher Education Amendment Act of 1998, 20 U.S.C. § 1011A, is not a
separate cause of action, but is merely a "sense of Congress."
130. Plaintiffs have failed to state a claim upon which relief can be granted against
Dickinson for declaratory judgment.
131. Declaratory judgment is not a separate cause of action, but is merely a form
of relief.
132. Plaintiffs have failed to state a claim upon which relief can be granted against
Dickinson for preliminary and permanent injunction.
133. Preliminary and permanent injunctive relief is not a separate cause of action,
but is merely a form of relief.
134. Plaintiffs' Third Cause of Action, breach of contract/violation of due process,
should be dismissed because no Plaintiff has standing to assert such cause of action.
135. The Chapter does not have standing to assert the Third Cause of Action
because it did not enter into a contract, either express or implied, with Dickinson.
136. Plaintiff Jeremy Lyon does not have standing to assert the Third Cause of
Action because he graduated from Dickinson on May 21, 2006 and is no longer an active
member of the Chapter.
137. Plaintiffs Joshua R. Erhardt, Michael Ciatto, Patrick Sheahan and Alex
Whitney do not have standing to assert the Third Cause of Action because none of these
Plaintiffs were members of the Chapter at the time of the disciplinary hearing in the Fall of
2004.
138. Plaintiffs' claims may be barred, in whole or in part, by the applicable statute
of limitations.
139. Plaintiffs' claims are barred, in whole or in part, by the doctrine of unclean
hands.
•
WHEREFORE, Defendant Dickinson College requests that this Court grant judgment
in its favor and against Plaintiffs Joshua R. Erhardt, Michael Ciatto, Jeremy Lyon, Patrick
Sheahan, Alex Whitney and Omicron Chapter of Sigma Chi Fraternity, together with costs
and any other relief that this Court deems just.
DICKINSON COLLEGE
Dana Scaduto, General Counsel
I.D. No. 41260
P.O. Box 1773
College & Louther Streets
Carlisle, PA 17013
(717) 245-1013
McNees, Wallace & Nurick
Elizabeth A. Maguschak
I.D. No. 39853
Kimberly A. Selemba
I.D. No. 93535
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Dated: May 30, 2006 Attorneys for Defendant
a
VERIFICATION
Subject to the penalties of 18 Pa.C.S.§ 4904 relating to unsworn
falsification to authorities, I certify that am the Associate Dean of Students of
Dickinson College and am authorized to make this Verification on its behalf. I
further certify that the facts contained in the foregoing Answer With New Matter
are true and correct to the best of my knowledge, information and belief.
Dickinson College
Date: May 30, 2006 by 6?JV q4,
Michael alone
Associate Dean of Students
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Answer with New Matter has been mailed this
date by U.S. Mail First Class, postage prepaid and addressed as follows:
Kevin Canavan
Thomas Ollason
Swartz Campbell
1601 North Market Street, Floor 34
Philadelphia, PA 19103
Timothy M. Burke
Daniel J. McCarthy
Manley Burke
250 West Court Street
Cincinnati, OH 45202
r--b a-Ka- -ax-4 ?
Dana Scaduto
Date: May 30, 2006
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MAY 2 510065
IN THE COURT OF COMMON PLEAS OF THE COMMONWEALTH OF PENNSYLVANIA
IN AND FOR CUMBERLAND COUNTY
JOSHUA R. ERHARDT
511 MARKEYS ROAD
RUFFSDALE, PA 15679
AND
MICHAEL CIATTO
1008 HILLDALE COURT
READING, PA 19605 CASE No.: 06-2647 CIVIL TERM
AND
JEREMY LYON
100 NORTH 67TH STREET
HARRISBURG, PA 17111
AND ORDER
PATRICK SHEAHAN
24 KNOLL CIRCLE
SOUTH BURLINGTON, VT 05403
AND
ALEX WHITNEY
77 COOLIDGE ROAD
CONCORD, MA 01792
AND
OMICRON CHAPTER OF SIGMA CHI
FRATERNITY
226 VERBEKE STREET
HARRISBURG, PA 17102
PLAINTIFFS,
V.
DICKINSON COLLEGE
P.O. Box 1773
CARLISLE, PA 17013
DEFENDANT.
4
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AND NOW, this 14 day of, 2006 upon motion of the plaintiffs for admission
Pro Hac Vice of attorneys Timothy M. Burke and Daniel J. McCarthy, it is hereby ORDERED
that these attorneys are specially admitted to the Bar of the Commonwealth of Pennsylvania Pro
Hac Vice for purposes of representing the plaintiffs in the above-referenced matter currently
pending in Cumberland County, Pennsylvania.
BY THE COURT:
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IN THE COURT OF COMMON PLEAS OF THE COMMONWEALT]
IN AND FOR CUMBERLAND COUNTY
JOSHUA R.ERHARDT
511 MARKEYs ROAD
RUFFSDALE, PA 15679
AND
MICHAEL CIATTO
1008 HILLDALE COURT
READING, PA 19605
AND
JEREMY LYON
100 NORTH 67TH STREET
HARRISBURG, PA 17111
AND
PATRICK SHEAHAN
24 KNOLL CIRCLE
SOUTH BURLINGTON, VT 05403
AND
ALEX WHITNEY
77 COOLIDGE ROAD
CONCORD, MA 01792
AND
OMICRON CHAPTER OF SIGMA CHI
FRATERNITY
226 VERBEKE STREET
HARRISBURG, PA 17102
PLAINTIFFS,
V.
DICKINSON COLLEGE
P.O. Box 1773
CARLISLE, PA 17013
DEFENDANT.
CASE NO
ACCE
1
IOF PENNSYLVANIA
.: 06-2647 CIVIL TERM
ANCE OF SERVICE
I:.
I, Dana Stevens Scaduto, Esquire, accept service of the Comp]
behalf of Dickinson College and certify that I am authorized to do so.
as of May 12, 2006 on
BY: -A*A4reA
Dana Ste ens Scaduto
General Counsel
Attorney
Attorney
College
D. No. 41260
Defendant
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IN THE COURT OF COMMON PLEAS OF THE COMMONWEALTH OF PENNSYLVANIA
IN AND FOR CUMBERLAND COUNTY
JOSHUA R. ERHARDT, ET AL
PLAINTIFFS,
V. CIVIL ACTION NO. 06-2647
DICKINSON COLLEGE
DEFENDANT
STIPULATION
WHEREAS, the parties in the above-captioned litigation, by and through their respective
counsel, have agreed to the following and stipulate that:
1. Plaintiffs in this litigation shall not be subject to any disciplinary action by the
Defendant, Dickinson College, nor shall Plaintiffs be deprived of any honors or awards they may
have otherwise earned, based solely on their initiation of, authorizing, testifying in, or assisting
counsel with this litigation;
2. The Defendant Dickinson College reserves the right to discipline Plaintiffs for
violations of the Community Standards of Dickinson College; and
3. Plaintiffs will not use this Stipulation or the litigation to disrupt or interfere with
the day-to-day operations of the College.
4. Litigation activities by Plaintiffs, unless otherwise agreed to in writing by
Dickinson College, will be conducted off-campus.
5. Dickinson College employees acting within the course and scope of their
employment, will comply with any order issued by a court of competent jurisdiction against
Dickinson College.
Respectfully submitted,
k L.- ",
Kevin Canavan
Thomas Ollason
SWARTZ CAMPBELL
1601 Market Street, Floor 34
Philadelphia, PA 19103
Telephone: (215) 564-5190
Facsimile: (215) 299-4301
Email: kcanavangswartzcampbell.com
Email: tollason@swartzcampbell.com
Counsel for Plaintiffs
Of Counsel
Timothy M. Burke
Daniel J. McCarthy
MANLEY BURKE
A LEGAL PROFESSIONAL ASSOCIATION
225 West Court Street
Cincinnati, Ohio 45202
Telephone: (513) 721-5525
Facsimile: (513) 721-4268
Email: tburke@manleyburke.com
dmccarthy@manleyburke.com
r-'L?G m' AW.0 6?
Dana Scaduto
Attorney I.D. No. 41260
Office of General Counsel
Dickinson College
P.O. Box 1773
Carlisle, PA 17013-2896
Counsel for Defendant
2
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IN THE COURT OF COMMON PLEAS OF THE COMMONWEALTH OF PENNSYLVANIA
IN AND FOR CUMBERLAND COUNTY
JOSHUA R. ERHARDT
511 MARKEYs ROAD
RuFFSDALE, PA 15679 .
AND
MICHAEL CIATTO
1008 HILLDALE COURT
READING, PA 19605 CASE No.:06-2647
AND
JEREMY LYON
100 NORTH 67TH STREET
HARRISBURG, PA 17111
AND
PATRICK SHEAHAN
24 KNOLL CIRCLE
SOUTH BURLINGTON, VT 05403
AND
ALEX WHITNEY
77 COOLIDGE ROAD
CONCORD, MA 01792
AND
OMICRON CHAPTER OF SIGMA CHI FRATERNITY
226 VERBEKE ST.
HARRISBURG, PA 17102
PLAINTIFFS,
V.
DICKINSON COLLEGE
P.O. Box 1773
CARLISLE, PA 17013
DEFENDANT.
SWARTZ CAMPBELL LLC
ATTORNEYS AT LAW
REPLY OF PLAINTIFFS', JOSHUA R. ERHARDT, MICHAEL CIATTO, JEREMY
LYON, PATRICK SHEAHAN, ALEX WHITNEY AND THE OMICRON CHAPTER OF
SIGMA CHI FRATERNITY TO THE NEW MATTER OF DEFENDANT, DICKINSON
COLLEGE
121. Plaintiff incorporates by reference herein the allegations set forth in the
Complaint. It is denied that the defendant has included a Counterclaim in paragraphs 1 through
120 of the Answer with New Matter.
122.425. Denied. The averments set forth in paragraph 122 through 125 constitute
conclusions of law and thus are deemed denied pursuant to the Pennsylvania Rules of Civil
Procedure. To the extent that these paragraphs set forth factual allegations they are denied.
126. Denied. The averments set forth in paragraph 122 through 125 constitute
conclusions of law and thus are deemed denied pursuant to the Pennsylvania Rules of Civil
Procedure. By way of further response, Mr. Feiner's initial electronic mail to Mr. Erhardt, sent
late in the evening on Monday, April 17, 2006 stated that Mr. Erhardt's attendance was expected
at the meeting the following morning at 9:00 a.m. Following Mr. Erhardt's objection to the last
minute notice, the method of the notice, and the lack of details contained in the notice, Mr.
Feiner refused to provide additional information and stated that "[y]our attendance at the this
meeting is required." By making the meeting mandatory, the College made it clear that
disciplinary action would follow if Mr. Erhardt did not attend the meeting with Mr. Feiner.
127.-135. Denied. The averments set forth in paragraph 127 through 135 constitute
conclusions of law and thus are deemed denied pursuant to the Pennsylvania Rules of Civil
Procedure. To the extent that these paragraphs set forth factual allegations they are denied.
136. Denied. The averments set forth in paragraph 136 constitute conclusions of law and
thus are deemed denied pursuant to the Pennsylvania Rules of Civil Procedure. It is admitted
that Mr. Lyon graduated from the College on May 21, 2006. By way of further response, Mr.
Lyon possesses Constitutional associational rights the College is contractually required to
recognize. The College's actions infringe upon Mr. Lyon's associational rights. Further,
membership in Sigma Chi and the Chapter is for life. Though special circumstances exist in
which a member may lose active membership, Mr. Lyon remains in good standing with both
Sigma Chi and the Chapter.
137. The averments set forth in paragraph 137 constitute conclusions of law and thus are
deemed denied pursuant to the Pennsylvania Rules of Civil Procedure. By way of further
response, Plaintiffs Erhadt, Ciatto, Sheahan and Whitney possess Constitutional associational
rights the College is contractually required to recognize. The College's actions infringe upon
these associational rights. Further, membership in Sigma Chi and the Chapter is for life.
138-139. Denied. The averments set forth in paragraph 138 through 139 constitute
conclusions of law and thus are deemed denied pursuant to the Pennsylvania Rules of Civil
2
SWARTZ CAMPBELL LLC
ATTORNEYS AT LAW
Procedure. To the extent that these paragraphs set forth factual allegations they are denied. To
the extent that these paragraphs set forth factual allegations they are denied.
Respectfully submitted,
SWAFVZ CAIMELL LLC
Kevin
ThomJs Ollason
SWARTZ CAMPBELL
1601 Market Street, Floor 34
Philadelphia, PA 19103
Telephone: (215) 564-5190
Facsimile: (215) 299-4301
Email: kcanavan@swartzcampbell.com
Email: tollason@swartzcampbell.com
Counsel for Plaintiffs
Of Counsel
Timothy M. Burke
Daniel J. McCarthy
MANLEY BURKE
A LEGAL PROFESSIONAL ASSOCIATION
225 West Court Street
Cincinnati, Ohio 45202
Telephone: (513) 721-5525
Facsimile: (513) 721-4268
Email: tburke@manleyburke.com
dmccarthy@manleyburke.com
3
SWARTZ CAMPBELL LLC
ATTORNEYS AT LAW
CERTIFICATION OF SERVICE
Thomas Ollason, Esquire, being duly sworn according to law, deposes and says that he is the
attorney for the Plaintiffs, and that he forwarded a copy of the Plaintiffs' Reply to New Matter to the
parties in the above matter listed below by first class mail, postage prepaid.
Dana Scaduto, Esquire
Office of General Counsel
Dickinson College
P.O. Box 1773
Carlisle, PA 17013-2896
SWAPIZ C PBELL LLC
Tho as Ollason
SW TZ CAMPBELL
1601 Market Street, Floor 34
Philadelphia, PA 19103
Telephone: (215) 564-5190
Facsimile: (215) 299-4301
Email: kcanavan@swartzcampbell.com
Email: tollason@swartzcampbell.com
Counsel for Plaintiffs
Of Counsel
Timothy M. Burke
Daniel J. McCarthy
MANLEY BURKE
A LEGAL PROFESSIONAL ASSOCIATION
225 West Court Street
Cincinnati, Ohio 45202
Telephone: (513) 721-5525
Facsimile: (513) 721-4268
Email: tburke@manleyburke.com
dmccarthy@manleyburke.com
SWARTZ CAMPBELL LLC
ATTORNEYS AT LAW
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IN THE COURT OF COMMON PLEAS
OF THE COMMONWEALTH OF PENNSYLVANIA
IN AND FOR CUMBERLAND COUNTY
JOSHUA R. ERHARDT, ET AL.,
PLAINTIFFS, .
V.
CIVIL ACTION NO.: 06-2647
DICKINSON COLLEGE,
DEFENDANT.
MOTION FOR PRELIMINARY
INJUNCTION
Plaintiffs Joshua R. Erhardt, Michael Ciatto, Jeremy Lyon, Patrick Sheahan, Alex
Whitney and the Omicron Chapter of Sigma Chi Fraternity ("the Chapter"), by its attorneys,
hereby move this Court pursuant to the Pennsylvania Rules of Civil Procedure to issue a
preliminary injunction.
1. Plaintiffs filed their Complaint with the Court on May 9, 2006.
2. Defendant Dickinson College answered on May 30, 2006.
3. The relationship between Dickinson College and its students is contractual in
nature.
4. Pursuant to that contract, Dickinson students enjoy the same constitutional
associational rights that other citizens enjoy.
5. The College has breached its contract by threatening its students with discipline,
up to and including expulsion from the College, for merely exercising their right to associate
together off-campus as members of the Omicron Chapter of Sigma Chi Fraternity.
6. The parties entered into a stipulation filed on June 12, 2006 in which the College,
in part, agreed not to discipline Plaintiffs for merely participating in this litigation.
7. This Motion seeks a preliminary injunction to permit Plaintiffs, Dickinson
students, to exercise their right to associate together as members of the Chapter, to engage in
Chapter activities, including the recruitment and acceptance of new members into the Chapter.
In support of this motion, Plaintiffs submit the Complaint, Plaintiff's Verification and a
memorandum of law.
WHEREFORE, Plaintiffs respectfully request that this Court grant its Motion for
Preliminary Injunction.
Respectfully submitted,
Timothy M. e
Daniel J. McCarthy
MANLEY BURKE
A LEGAL PROFESSIONAL ASSOCIATION
225 West Court Street
Cincinnati, Ohio 45202
Telephone: (513) 721-5525
Facsimile: (513) 721-4268
Email: tburke@manleyburke.com
dmccarthy@,manleyburke.com
SWARTZ CAMPBELL
1601 Market Street, Floor 34
Philadelphia, PA 19103
Telephone: (215) 564-5190
Facsimile: (215) 299-4301
Email: kcanavan@swartzcampbell.com
Counsel for Plaintiff's
2
MEMORANDUM IN SUPPORT OF
PRELIMINARY INJUNCTION
I. INTRODUCTION
This case is about broken promises and broken contracts. Defendant Dickinson College
("the College'), a private college founded by Dr. Benjamin Rush, one of the founders of the
United States, prides itself as being a "bulwark of liberty." Though it is a private college, the
College promised its students, through its official documents, many of the same constitutional
rights and privileges "that other citizens" enjoy. The College has recently broken this promise,
this contract with its students, by threatening to expel students for merely exercising their
constitutional rights to associate together off campus as part of the Omicron Chapter of the
Sigma Chi Fraternity ("the Chapter").
Though Plaintiffs' Complaint raises numerous claims of illegal acts, Plaintiffs' lead claim
centers on the College's breach of contract. For purposes of this Motion and Memorandum,
Plaintiffs will only focus on the breach of contract claim.
In this Motion, Plaintiffs seek a preliminary injunction to permit the Chapter's continued
existence as an organization in Carlisle comprised of Dickinson students. Accordingly, Plaintiffs
seek an order that would permit the Chapter to resume full Chapter activities, including
recruitment, pledging and initiation of new members, before classes resume on August 28, 2006.
As established below, Plaintiffs satisfy the requirements for the relief requested.
H. FACTS
THE COLLEGE
The College is a small, private, liberal arts college in Carlisle with approximately 2,300
students. In many of its publications, such the 2004-2005 Student Handbook and its webpage
(www.dickinson.edu), the College relays its history. Dr. Benjamin Rush, one of the signers of
3
the Declaration of Independence, is central to the College's retelling of its history. Without
question, Dr. Rush was the key figure in transforming Dickinson College into a high quality,
liberal-arts college. The College's webpage includes a section entitled "The Birth of a New
College."' In describing Dr. Rush in that section, the College states that "fait his core, Rush
believed in freedom-freedom of thought and freedom of action." (Emphasis added). The
College also naturally focuses on John Dickinson, known as the "Penman of the Revolution,"
and the man the College is named after. On Mr. Dickinson, the College's webpage continues:
"Tuta libertas. Those were the words that John Dickinson used to describe the new college.
Tuta libertas-`A bulwark of liberty. "'2
In its brochures, handbooks, and other official publications, the College consistently and
repeatedly refers to the concepts of freedom and liberty espoused by Dr. Rush and Mr.
Dickinson. In fact, the College's Community Standards contains the College's Statement of
Principals, which state:
Citizen-leaders - a defining characteristic of members
of the Dickinson College community.
To prepare our students to be active, engaged citizens of
the world and to educate them for positions of leadership in
their communities, nation, and around the globe is a
strategic objective of this College. Dickinson's definition
of citizenship, drawn from the College's roots in the
American Revolutionary era, centers on using its own
community to instill habits of independence (as formed by
the interplay of freedom and responsibility), self-
governance, respect for and service to ideals greater than
the individual self, and recognition that liberal education
advances citizenship and substantive professional and
personal contributions to society.3
Further, the College's webpage concludes "The Dickinson Story" with the following:
Documents attached as Exhibit A.
z Id. Emphasis added.
3 Attached as Exhibit B.
4
An Eye to the Past, A Foot in the Future
Proud of its heritage and true to the vision of its founders,
Dickinson College remains committed to its historic
mission: to prepare young people, by means of a useful and
progressive education in the liberal arts and sciences, for
engaged lives of citizenship and leadership in the service of
society. As it looks toward the future, Dickinson is ever
mindful of its revolutionary roots: unafraid to take risks, to
speak out on important issues, to remain decisive and
competitive and committed to its own brand of the liberal
arts-academically rigorous, useful, and unapologetically
engaged with the world.
The College, in addition to its numerous references to freedom, liberty and the ideals of
citizenship, expressly promises its students many of the First Amendment associational rights
and privileges that other citizens enjoy. Specifically, in both its Student Handbook and its
Community Standards, the College states the following under the heading "Students' Rights as
Citizens":
College students are both members of the academic community
and citizens. As citizens, students should enjoy the same freedom
of speech, peaceable assembly and right of petition that other
citizens enjoy. The College shall not inhibit such intellectual and
personal development of students as may be prompted by the
exercise of these rights, both on and off campus.4
THE CHAPTER'S HISTORY
Sigma Chi is an international fraternity with 217 undergraduate chapter and 145 alumni
chapters and was founded in 1855. Sigma Chi is a brotherhood with roots in the collegiate
experience that engenders a lifelong commitment to strive to achieve true friendship, equal
justice and the fulfillment of learning as part of its members' overall responsibilities to the
broader communities in which they live. The fraternity provides world-class leadership
a Documents attached as Exhibit C.
5
programs aimed to reach each member, which helps develop young men into character-based
leaders committed to the betterment of community.
The Chapter, one of the oldest Sigma Chi chapters in the world, was founded at the
College in 1859 and has continuously existed as an organization in Carlisle comprised of
Dickinson students since its founding. The Chapter, as the local embodiment of the Sigma Chi
International Fraternity, has as its fundamental purpose the cultivation, maintenance and
accomplishment of the ideals of friendship, justice and learning within its membership. In
pursuit of that fundamental purpose, the Chapter engenders a lifelong commitment to seek true
friendship, equal justice for all, and the fulfillment of learning as part of its members'
responsibilities to the broader communities in which they live. Sigma Chi, the Chapter, and its
individual members strive to develop a brotherhood focused on deep bonds and friendships,
character, learning and scholarship, leadership, financial responsibility, community service and
social development.
The Chapter and the College enjoyed a mutually beneficial working relationship during
most of the Chapter's existence. The Chapter has continuously and consistently produced
campus leaders, community leaders, scholars, and athletes that benefited the College both during
the student's time at the College and following graduation.
Plaintiffs acknowledge former members of the Chapter had a string of disciplinary
violations which resulted in a house cleaning of members by the Chapter's alumni during the
Fall 2003 semester. Leading Chapter alumni thoroughly reviewed the individual Chapter
members and removed the students responsible for the Chapter's disciplinary violations. The
membership review was completed in December of 2003 and resulted in the removal of 22 out of
29 members from the Chapter.
6
With the encouragement and cooperation of the College, the Chapter's alumni readily
agreed to conduct the membership review because they recognized that the misbehaving
members were threatening to destroy the Chapter, violating College rules and failing to live up to
Sigma Chi standards. The College led the alumni to believe that the "new" Chapter would be
measured by the conduct of its continuing and new members, not by the conduct of those who
had been removed. The College, however, decided to not only hold the removed members'
actions against the Chapter, it also held the actions of the removed members after their removal
against the Chapter. When the alumni removed the misbehaving members from the Chapter, the
alumni also sought their removal from the fraternity house, which was owned by the College.
However, the College permitted the removed members to remain in the fraternity house and
those students proceeded to cause substantial damage to the building. Contrary to its prior
commitment, the College then charged the Chapter with additional disciplinary violations for
actions taken by the disgruntled former members. The College discipline stopped short of
withdrawing its recognition of the Chapter.
During the Spring 2004 semester, the Chapter was attempting to reorganize after the
membership review and dismissal of many members. The Chapter received no pledges during
the College's formal rush (recruitment) period that semester because of actions and threats of the
previously removed members and because of rumors that the Chapter would soon be kicked off
campus. However, shortly after the close of the College's rush, a group of nine students
approached the Chapter and asked if they could join the Chapter. The Chapter strongly desired
to pledge this group of students and requested the College's approval to do so. The College
initially said no, but then instructed the Chapter to get the Interfraternity Council's ("IFC")
approval, indicating to representatives of the Chapter that if the IFC approved, the Chapter would
7
be pleased with the administration's response. Because of the Chapter's unique situation, the
IFC unanimously approved a resolution in support of the Chapter pledging the group of nine
students after the close of formal rush.s
After the Chapter presented the IFC resolution in support of the Chapter's request, the
College still did not permit the Chapter to pledge the nine students. The Chapter's decision at
this time was to either accept the College's decision and risk death by attrition, or accept the
students as members and risk the College's response. After consulting with the Sigma Chi
International organization, the Chapter decided to accept the members rather than risk the end of
nearly 150 continuous years of operation.
The decision by Sigma Chi, the Chapter and its members to accept into membership nine
new members was the cause of the College's decision to ban the Chapter from campus. The ban
was imposed because students simply sought to exercise the associational rights members of our
democratic society have under the United States Constitution, precisely the rights the College
promises, indeed contracted with its students, to honor. Other than associating together as the
Chapter members or new members, there were no disciplinary violations that caused the ban.
Nonetheless, this motion does not challenge the campus ban but rather the threats of discipline,
deprivation of privileges and expulsion from engaging in associational rights off campus.
THE CURRENT CHAPTER
After its expulsion in September, 2004, the Chapter, with the full support of its alumni
and Sigma Chi's International office, decided to maintain the Chapter as an organization in
Carlisle. The Chapter has existed and prospered as an organization in Carlisle, with no official
affiliation with the College, since its expulsion. For nearly two years, the College acknowledged
the Chapter's right to exist off campus-even though it did not support the Chapter.
s IFC resolution attached as Exhibit D.
8
First, in a December 3, 2004 letter addressed "To the Men of the Class of 2008," Jason
Feiner, the Assistant Director of Student Activities and the Director of Fraternities at the College,
corrected an earlier letter to the students. In this letter, Mr. Feiner stated that the Chapter was no
longer recognized by the College, and then encouraged Dickinson students to only consider
recognized fraternities. Mr. Feiner, however, went on to state that the College "respects the right
of each student to choose to affiliate with organizations of his own choosing on or off-campus.
There are no consequences under the Community's Standards based upon the decision to affiliate
or join any particular off-campus organization. ,6
Second, in a joint letter dated March 25, 2005 signed by Dr. Robert Massa, the Vice
President of Enrollment and College Relations for the College, and Don Zane, the President of
the Chapter's House Corporation, the College and the Chapter spelled out the details of how
certain Chapter scholarship funds would be administered. The letter began by stating that while
the Chapter is no longer recognized by the College, "the Chapter continues to exist as an
organization, although completely separate from Dickinson College." The letter then explained
that the assets of one of the two scholarships created to benefit members of the Chapter, the
Sigma Chi Scholarship Fund, had been released to the Sigma Chi Foundation for use by Omicron
members. The other scholarship, the Lester T. Etter Scholarship, would still be awarded by the
College to students "based upon mutually acceptable criteria so that the memory of this
legendary Omicron will live on for the future."7
The Chapter, therefore, continued to exist with the support of its alumni, Sigma Chi, and
the recognition by the College that the Chapter had a right to exist off-campus and Dickinson
students had a right to join the Chapter. The Chapter enjoyed this status during the Fall 2004
6 Letter attached as Exhibit E. (Emphasis added).
Letter attached as Exhibit F.
9
semester, the Spring 2005 semester, and the Fall 2005 semester. During this time the Chapter
evolved into one of the best Sigma Chi chapters in the country. In fact, in recognition of its
superior performance, the Chapter just received several awards from Sigma Chi, including the
prestigious J. Dwight Peterson Significant Chapter Award by the Sigma Chi Foundation.8 The
Peterson Award is the highest honor Sigma Chi bestows upon its chapters and requires
excellence in all major areas of operation and programming.
Despite the College's statements on freedom, liberty and the ideals of citizenship, despite
the College's stated promise to give Dickinson students the same constitutional associational
rights and privileges as other students, despite the College's explicit and implicit approvals of the
Chapter's existence off-campus, and despite the Chapter's recent resounding successes, the
College is now attempting to destroy the Chapter by seeking to prohibit students from exercising
their First Amendment freedom of speech and association rights to join the Chapter or engage in
Chapter activities.
The College's actions are being undertaken not because current Chapter members or
those who are interested in becoming members have disciplinary problems, but simply because
they want to associate with one another as members of Sigma Chi. As fully detailed in
Plaintiffs' Complaint, the College issued a series of letters in early February, 2006 in which the
College threatened to expel students or withdraw or withhold earned honors and privilege,
including merit based financial aid, to those students who either attempt to recruit new members
to join the Chapter or who seek to join the Chapter.9
The College's actions and threats against the Plaintiffs, the members of the Chapter, and
the other students at Dickinson interested in joining the Chapter are at the heart of this case. The
s Award letter attached as Exhibit G.
9 Letters attached as Exhibit H.
10
College has already shown a willingness to punish students for merely being members of the
Chapter as two current students, including Plaintiff Michael Ciatto, were initially deliberately
kept off the College's Dean's List, despite meeting every requirement only because they were
members of the Chapter.10 Current students, such as Plaintiff Alex Whitney, want to join the
Chapter, but are prohibited from doing so because of the College's threats. Plaintiffs seek an
order to permit students to be able to freely associate together off-campus as members of the
Chapter.
III. ARGUMENT
The following factors are relevant in determining whether to grant a preliminary
injunction:
1) Whether an "injunction is necessary to prevent immediate and irreparable harm
that cannot be adequately compensated by damages";
2) Whether greater injury will result if the injunction is granted or is not granted, and
whether the injunction will harm third parties interested in the litigation;
3) Whether the injunction will restore the parties to their status immediately prior to
the alleged wrongful conduct;
4) Whether "the activity it seeks to restrain is actionable, that its right to relief is
clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on
the merits";
5) Whether the injunction is reasonably suited to abate the wrongful conduct; and
6) Whether the injunction would adversely affect the public."
A. Plaintiffs Will Suffer Irreparable Harm
10 The College later relented and placed the deserving students on the Dean's List, but only after extensive
complaints by the students and their parents.
11 Warehime v. Warehime, 580 Pa. 201, 209-10, 860 A.2d 41, 46-7 (2004).
11
An injury is irreparable if it will cause damage which cannot be fully estimated by
any accurate pecuniary standard. 12 Further, irreparable injuries cannot be adequately
compensated by damages and must be irreversible. 13 "The loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes inseparable harm."la
The Plaintiffs' damages caused by the College's breach of contract cannot be
compensated by money. Students at the College essentially have a four-year window in which
they can join the Chapter. By joining the Chapter, students not only receive the benefits of
brotherhood while in college, but also the benefits that follow graduation and stays with the
brothers for life. While Plaintiffs Erhardt, Ciatto and Sheahan are current members of the
Chapter, the College has prevented them from enjoying the full benefits and experience as
members of the Chapter. Specifically, the Plaintiffs are denied the full benefits of Chapter
membership because the College has stated: "If Sigma Chi engages in any recruiting or
membership activities, each individual member will be subject to expulsion for the activities of
the group."ls
The College's actions and threats have forced the Plaintiffs to walk on egg shells.
The Chapter is afraid to do anything as a Chapter and as brothers because the College's threats of
expulsion could result in the expulsion of the entire membership of the Chapter. The College
was correct when it clearly recognized the right of the Chapter to exist off-campus and the right
of Dickinson students to choose to be part of it. Now, without the justification of any
misconduct, the College seeks to impose a rapid death penalty on the Chapter, and refuses to
12 Boehm v. University of Pennsylvania School of Veterinary Medicine, 392 Pa. Super. 502, 522, 573 A.2d 575, 586
(1990).
13 Id
14 Elrod v. Burns, 427 U.S. 347, 373 (1976).
" See Exhibit H.
12
honor its promise to respect the freedom of its students to exercise their constitutional rights both
on and off campus.
Further, the College has prevented Plaintiff Whitney from even joining the
Chapter. Mr. Whitney and a group of other students intended to become pledges of the Chapter
during the Spring 2006 semester. The College's actions forced the Chapter and the individuals
interested in joining the Chapter to stop the pledging process because of their fears of expulsion.
Mr. Whitney's short window to join the Chapter and receive the benefits resultant from
membership and brotherhood is rapidly closing. His undergraduate career is now 25% over. Mr.
Whitney, and others similarly situated, should be able to immediately join the Chapter pending a
full trial on the merits.
The College presented the Plaintiffs with a Hobson's Choice: they can either
follow the new dictates of the College, in which case the Chapter will cease to exist once the
current members graduate from the College, or they can ignore the College's threats and attempt
to carry on the life of the Chapter. If they opt to continue the Chapter, every single member of
the Chapter, even those who do not participate in recruitment efforts, faces the very real threat of
expulsion or loss of privileges, honors and merit-based financial aid. Such a choice is no choice
at all.
Because of the unique experience and timing involved with membership in the
Chapter, the harm caused by the College's wrongful conduct is not something that can be
compensated by money.
B. While Plaintiffs Will Suffer Greatl if The Injunction Is Not Granted No Third
Parties Would Be Harmed If the Injunction is Granted
As established above, the individual Plaintiffs and the members of the Chapter
will suffer immediate, irreparable harm if the injunction is not granted. Additionally, other
13
students at the College will suffer harm if the injunction is not granted. The College's current
policy limits the choices its students can make concerning which off-campus organization its
students can join. College students should have the ability to decide for themselves which off-
campus organizations they would like to join, especially in cases like this one where the host
college promised its students these very constitutional rights and privileges. No third parties will
be harmed if the injunction is granted. The ability for students to choose which off-campus
organizations they join only creates more freedom and benefits for all students at the College.
The activities and behavior of the Chapter and its members are still subject to
control and monitoring by a variety of authorities: obviously the laws and legal authorities in
Carlisle, the College's standards and regulations, and the Sigma Chi International Fraternity.
The Chapter and its members are fully aware that they must comply with local law, campus
conduct regulations, and Sigma Chi policies. Importantly, Plaintiffs do not seek to enjoin the
College from punishing individuals for violations of law and College regulations unrelated to
legal membership activities.
C. The Requested Injunction Would Prohibit The College From Punishing Students
Merely Because of Off-Campus Otherwise Legal Activities Related to
Membership In The Chester
Prior to the letters the College distributed in February, 2006, the College made it
clear that "[t]here are no consequences under the Community's Standards based upon the
decision to affiliate or join any particular off-campus organization." 16 The College encouraged
students to join recognized on-campus fraternities, but stated that students could choose to join
off-campus fraternities.
In fact, the Chapter existed as an off-campus fraternity for nearly two full years
without such interference from the College. During that time, the Chapter recruited and added
l6 See Exhibit E.
14
new members without either aid or interference from the College. An injunction would prevent
the College from acting on its threats of expulsion or other punishment because the Chapter and
its members engaged in otherwise legal activities of Sigma Chi, including the recruitment and
acceptance of new members off-campus.
D. Plaintiffs Are Likely To Prevail On The Merits
The College entered into contracts with its students and one of the terms of that
contract guarantees students the same constitutional rights "that other citizens enjoy.s17 One of
the constitutional rights that other citizens enjoy is the right to freedom of association under the
1 st and 14th Amendments. The College's actions, by threatening its students with expulsion, the
academic version of the death penalty, violates the students' right to freely associate; therefore
the College's actions also violates the terms of the contracts with the Plaintiffs and other students
at the College.
1. The Contract
Because the relationship between a private college and its enrolled
students is contractual in nature, students can sue the college they attend for breach of contract if
the college ignores or violates portions of the written contract. 18 The terms of such contracts
"are contained in the brochures, course offering bulletins, and other official statements, policies
and publications of the institution.s19 Contractual terms are interpreted under a reasonable
expectation standard-in other words, what meaning the party making the manifestation, the
17 Documents attached as Exhibit C.
18 Swartley v. Hoffner, 734 A.2d 915, 919 (Pa. Super. 1999).
?9Id. quoting Jansen v. Emory University, 440 F.Supp. 1060, 1062 (N.D.Ga.1977), af'd, 579 F.2d 45 (5m Cir.
1978).
15
college in this case, should reasonably expect the other party to give it.20 Further, in analyzing a
contract between an institution of higher education and its students, a rigid application of
contract law is not necessary. 21
The College, in paragraph 85 of its Answer, admitted that it entered into
contracts with the individual Plaintiffs. Specifically, paragraph 85 of Plaintiffs' Complaint
alleged that "[b]y accepting the College's offer and by paying tuition and attending Dickinson
College, Plaintiffs and Dickinson College entered into a contract." In response, the College's
Answer simply stated "[a]dmitted."
Because there is no dispute that the individual Plaintiffs and the College
entered into a binding contract, the next inquiry is to determine the terms of the contract by
looking at the College's brochures, handbooks, and other official publications.
The College's repeatedly cites to Dr. Rush and his core belief in freedom
of thought and freedom of action, to Mr. Dickinson and his desire to create a "bulwark of
liberty," and to the ideals of freedom, liberty and citizenship in general. The College's repeated
references to freedom, liberty and the ideals of citizenship are enough for a reasonable person to
conclude that the College places a special emphasis on its students' rights. In fact, based on the
College's statements and its focus on its history and founding, a reasonable student could
conclude that the College guarantees its students at least the same rights to freedom and liberty
as found in the United States Constitution. Such rights naturally encompass the rights found in
the 1't and 14th Amendments to the Constitution.
20 Percy A. Brown & Co. v. Raub, 357 Pa. 271, 287, 54 A.2d 35, 43 (1947); Mangla v. Brown University, 135 F.3d
80, 83.
21 Boehm v. University of Pennsylvania School of Veterinary Medicine, 392 Pa.Super. 502, 513, 573 A.2d 575, 581
(1990).
16
The College, however, has even gone one step further: it expressly
guarantees its students many of the constitutional First Amendment rights and privileges that
other citizens enjoy. Specifically, the language in the Student Handbook and in the Community
Standards that "As citizens, students should enjoy the same freedom of speech, peaceable
assembly and right of petition that other citizens enjoy" is part of the contract between the
College and its students.
The next inquiry is to determine what rights of speech, peaceable
assembly and petition "that other citizens enjoy."
2. Associational Ri is
Freedom of association is centered on the First Amendment to the United
States Constitution. 22 Freedom of association is the Constitutional right for individuals and
groups to associate freely with others.23 In Roberts, the Supreme Court recognized and defined
two different categories of associational rights: the right of intimate association and the right of
expressive association.24
Though the College is a not a state actor for Constitutional purposes, the
analysis to determine whether the Chapter qualifies as an intimate or expressive association is
unchanged because the College promises its students the same rights and privileges that other
citizens enjoy. The Chapter meets the requirements for both an intimate and expressive
association under the guidelines established by the United States Supreme Court.
a. The Chanter is an Intimate Association
"Roberts v. United States Jaycees, 468 U.S. 608, 618 (1984).
23 Id.
24 Id; See generally Bd. of Dirs. of Rotary Intl v. Rotary Club of Duarte, 481 U.S. 537 (1987).
17
The right of intimate association is the right of one to enter with
others into close personal relationships without fear of government intrusion.25
Choices to enter into and maintain certain intimate human
relationships must be secured against undue intrusion by
the state because of the role of such relationships in
safeguarding the individual freedom that is central to our
constitutional scheme. 26
In Roberts, the Court set out the attributes that intimate
associations possess: "relative smallness, a high degree of selectivity in decisions to begin and
maintain the affiliation, and seclusion from others in critical aspects of the relationship.s2' The
Court also suggested that additional factors such as size, purpose, policy, selectivity and
congeniality should be considered in particular cases. 28
The Court established two poles on a spectrum to be used when
examining whether a group qualifies as an intimate association. At one end of the spectrum is
the family, which constitutes the most highly protected form of intimate association. 29 On the
other end of the spectrum is a large business corporation, which is definitely not an intimate
association. `Between these poles, of course, lies a broad range of human relationships that may
make greater or lesser claims to constitutional protection from particular incursions by the
State.s'O
Fraternities, such as the Chapter, are located on the spectrum
between the two poles of family relationships and business corporations. An examination of the
25 Roberts, 468 U.S. at 618.
' Id. at 617-18.
27 Id. at 620.
28 Id.
29 Id.
30 Id
18
factors as set forth in the Roberts and Duarte cases demonstrates that the Chapter is much closer
to family relationships than to business corporations. 31
In fact, the Chapter is very similar to the Alpha Epsilon Pi
Colony32 ("the Colony") in Chi Iota Colony of Alpha Epsilon Pi Fraternity et al. v. City
University of New York et a1.33 In that case, the United States District Court, Eastern District of
New York recently granted the Colony's motion for preliminary injunction, holding that the
Colony showed a clear or substantial likelihood of success on its intimate association claim.34
The Colony, the local embodiment of the Alpha Epsilon Pi
fraternity, sued the City College of New York, College of Staten Island ("CSF) after CSI refused
to recognize the Colony because it refused to open its membership to both sexes. Among several
other claims, the Colony argued that it was a protected intimate and expressive association and
that CSI's policy prohibiting single-sex organizations violated these associational rights. The
Court's opinion, after thoroughly analyzing the relevant law, granted the Colony's motion for a
preliminary injunction, finding that the Colony showed a likelihood of success on the merits.
Specifically, the Court held:
Under the totality of circumstances, considering the Fraternity's
relatively small size, exclusivity in membership, and seclusion in
activities central to the group's purposes, plaintiffs have shown
"clear" or "substantial" likelihood of success on the merits that the
Fraternity qualifies as an intimate association. 35
31 Id.; Duarte, 481 U.S. at 544.
32 A fraternity colony is essentially the same as a fraternity chapter, except in a preliminary form Once a colony is
open, fully operational, and compliant with the national fraternity's rules and regulations, the colony is generally
granted full chapter status.
3 Chi Iota Colony of Alpha Epsilon Pi Fraternity et al. v. City University of New York et al. 05-CV-2919, Judge
Irizarry, August 11, 2006 (Opinion attached as Exhibit K).
341d. at 25, 30.
35 Id
19
i. Size
The Supreme Court has never stated that size is the most
important factor in the intimate association analysis. In Pacific-Union Club v. Superior Court, 36
a California Appellate Court found that a club with a fixed membership of over 900 was small
enough to qualify as an intimate association. In Louisiana Debating Literary Assn v. City of
New Orleans, 37 that court held that New Orleans clubs of between 325 and 600 members
qualified as relatively small groups in the intimate association analysis.
The College will no doubt rely on Pi Lambda Phi v.
University of Pittsburgh.38 "However, the Third Circuit's decision does not give the court clear
direction, particularly since the Supreme Court has not established a bright line test when
considering a group's size. ,39 In that case, the Third Circuit held that the fraternity in that case
did not qualify as an intimate association. Initially, it is important to note that the Court held that
the particular fraternity in that case alone did not qualify as an intimate association. The Court
did not hold that it was impossible for any fraternity to qualify as an intimate associate. Further,
the factual situation involved in that case and the case at bar are vastly different. First, it is
important to note the substantial legal troubles the chapter had in that case. The Pittsburgh
police conducted a drug raid on the Pi Lambda Phi house and found drug paraphernalia, heroin,
cocaine, opium, and the date rape drug Rohypnol.40 Second, in the opinion, the court cited to
Duarte and noted that the potential size of the fraternity "would put the Chapter within the same
size range as the local Rotary Clubs" in Duarte.41 However, in Duarte, the Court stated that the
36 Pac- Union Club v. Superior Court, 283 Ca1.Rptr. 287, 294-97 (Ct.App. 1991).
37 Louisiana Debating Literary Assoc. v. City of New Orleans, 42 F.M. 1483 (5th Cir. 1995).
38 Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 442 (3`4 Cir. 2000).
39 Chi Iota Colony of Alpha Epsilon Pi Fraternity et at v. City University of New York et al. 05-CV-2919 at 19.
40 Id. at 439.
41 Id. at 442.
20
size of local Rotary Clubs ranged "from fewer than 20 to more than 900." Further, the Pi
Lambda Phi opinion made no express finding at all as to how the size of the fraternity chapter at
issue related to the "relatively small" requirement.
In this case, the Chapter, like the Colony in the Alpha
Epsilon Pi case, is a relatively small organization. Currently, the Chapter consists of
approximately 13 members, while there are approximately 2,300 students enrolled at the College
and approximately 18,000 residents in the Borough of Carlisle. 42 Further, the Chapter has not
exceeded 20 members since the Chapter's alumni conducted the membership review during the
Fall semester of 2003.
ii. High Degree of Selectivity
Fraternities and sororities generally are, and the Chapter
specifically is, highly selective in decisions concerning membership. The Chapter has developed
a very detailed, year-round recruitment process. Unfortunately, because of the College's threats
of expulsion and loss of privileges and honors, the Chapter has not been able to use their
recruitment policy since February 1, 2006 for fear of the consequences to its members and
perspective members.
As distinguished from the Pi Lambda Phi case in which the
Court found that fraternity lacked selectivity in its recruitment activities, the Chapter has
developed a multi-step, detailed recruitment policy that ensures the Chapter only accepts those
students who meet the Chapter's stringent standards. The Chapter's recruitment policy starts
during the Chapter's weekly members only meetings. During the Chapter meetings, the brothers
can nominate potential members. All nominated potential members are placed on the Chapter's
42 The Chapter consisted of 18 members when Plaintiffs filed the initial Complaint. However, several members
have since graduated from the College.
21
Master List. Potential members on the Master List are then invited to various informal Chapter
activities. These events provide the members an opportunity to get to know the potential
members and to determine whether the potential members exhibit the qualities the Chapter seeks.
Those potential members who attend at least four such activities must then receive at least a vote
of 40% of the Chapter members to advance in the process.
Those potential members who receive the required 40%
vote are then placed on the Chapter's Priority List. Once on the Priority List, potential members
are invited to more formal events, including philanthropic events. These events give the
members more time to meet and evaluate the potential members. The potential members must
also fill out a detailed potential member questionnaire. To further progress in the process, the
potential members must receive at least 80% of the Chapter vote. The Chapter evaluates the
potential member's attendance at events, academic performance, questionnaires, and
recommendations. If a potential member receives the necessary vote, that person advances to the
Bid List. The Bid List is the final step in the process. Once on the Bid List, the potential
member receives an invitation to join the Chapter.
The Chapter's detailed and thorough recruiting process
allows the Chapter to find candidates who exemplify the virtues of Sigma Chi and the Chapter.
Importantly, all recruitment activities are completely alcohol free. The Chapter's recruitment
places a strong emphasis on philanthropy to ensure that all new members understand the
importance of philanthropy and giving back to the community.
The Chapter's recruitment policy is in fact similar to the
recruitment policy used by the Colony in the Alpha Epsilon Pi case. The Court in that case
pointed out that the Colony "screens potential members through a formal process with an
22
emphasis on social and philosophical compatibility with existing members" and that
"membership decisions in the Fraternity are considered by the general membership."43 Clearly,
the Chapter's recruitment policy is extremely detailed and designed to ensure only high quality
students become members. Like the Colony in the Alpha Epsilon Pi case, the Chapter is highly
selective in its membership decisions.
iii. Seclusion From Others in Critical Aspects of the
Relationship
The third leg of the intimate association analysis is
"seclusion from others in critical aspects of the relationship."" The critical aspects of the
Chapter include, inter alia, the initiation ritual, the pledge ceremony, meetings to discuss when
to extend an invitation to a potential new member, and meetings to discuss termination of a
membership. Further, the Chapter conducts weekly meetings in which the day to day activities
of the Chapter are discussed. These meetings are conducted using Sigma Chi's ritual. These are
all private ceremonies or meetings, which are closed to the public. It is in these meetings that the
private business of the Chapter is discussed and secrets of the Chapter and Sigma Chi shared.
Attendance is strictly limited to Sigma Chi members. In the Alpha Epsilon Pi opinion, the court
held that "[t]he weekly members-only meetings and shared rituals are activities central to the
Fraternity's purposes of brotherhood, congeniality, functioning as a surrogate family, and sharing
a community of thoughts, experiences, and beliefs.s45
Only Sigma Chi members can attend any meeting in which
the Sigma Chi ritual is used. The Chapter uses the ritual at its Chapter meetings to remind the
43 Chi Iota Colony of Alpha Epsilon Pi Fraternity et al. v. City University of New York et al. 05-CV-2919 at 20.
44 Roberts, 468 U.S. at 620 (Emphasis added).
45 Chi Iota Colony of Alpha Epsilon Pi Fraternity et al. v. City University of New York et al. 05-CV-2919 at 21.
23
brothers of their commitments and values as members of Sigma Chi. Because the Chapter uses
the ritual in almost all of its meetings, ceremonies and initiations, non-members cannot
participate in any of the critical aspects of the Chapter.
Plaintiffs do not dispute that non-members are occasionally
invited to attend certain functions sponsored by the Chapter, including social functions. Social
functions are an ancillary aspect of fraternity life. Parties and social events may be open to non-
members, but these do not comprise the critical aspects of the member's relationships in a
fraternity. A traditional family that hosts an open house or a neighborhood backyard cookout
does not give up its rights to privacy, freedom of association or the right to exclude unwelcome
guests. Similarly, a fraternity and its members maintain their right to associate with whom they
choose in sharing their business and secrets-the critical aspects of their relationship, even if
they may occasionally engage in activities that involve non-members.
The Pi Lambda Phi's dicta that the fraternity in that case,
by including non-members in social activities, showed a "lack of seclusion in its activitiesi46
ignored the Supreme Court's language requiring that seclusion is required only in "critical
aspects of the relationship."47 Further, there was no evidence in that case that non-members
were actually excluded from the critical aspects of the fraternity. In this case, like in the Alpha
Epsilon Pi case, it is beyond dispute that the Chapter and its members maintain seclusion from
others in critical aspects of fraternity relationships and business as even the Chapter's weekly
chapter meetings are held pursuant to the Sigma Chi Ritual and exclude all non-members.
iv. PMoses, Policies and Congeniality
46 Pi Lambda Phi, 229 F.3d 442.
47 Rotary, 481 U.S. at 546; Roberts, 468 U.S. at 620.
24
Every new member of Sigma Chi receives the fraternity's
book entitled "The Norman Shield." The Norman Shield defines the purpose of the fraternity.
The Founders of Sigma Chi stated the following purpose in the Preamble to the Sigma Chi
Constitution of 1856:
Believing that many advantages are to be derived from a secret
fraternity organization; appreciating that closer communion of
kindred hearts which adds so many incentives to virtuous exertion;
and feeling that in union there is strength: We do hereby form
ourselves into an association for the development of the nobler
powers of the mind, the finer feelings of the heart, and for the
promotion of friendship and congeniality of feeling.48
Sigma Chi, the Chapter, and its individual members adhere
to the same purpose today. Sigma Chi's core values are friendship, justice and learning. The
Chapter, as the local embodiment of Sigma Chi, adheres to the same core values. To support the
Chapter's core values, the Chapter enables and encourages it members to create enduring
friendships and brotherhoods, founded on a shared set of principles. This brotherhood results in
deep attachments and commitments of thoughts, experiences, beliefs and distinctly personal
aspects of their lives. The highly selective nature of the Chapter allows the members to develop
a high level of congeniality amongst them. Further, the attributes established below as part of
the expressive association analysis certainly apply here as well.
Just as the Colony in the Alpha Epsilon Pi case established
a likelihood of success on the merits of its intimate association claim, the Chapter has also
established a likelihood of success on its intimate association claim.
b. The Chapter is an Expressive Association
The United States Supreme Court has "long understood as implicit
in the right to engage in activities protected by the First Amendment a corresponding right to
as Relevant page from The Norman Shield attached as Exhibit I.
25
associate with others in pursuit of a wide variety of political, social, economic, educational,
religious, and cultural ends.s49 This right to freedom of association is vital "in preventing the
majority from imposing its views on groups that would rather express other, perhaps unpopular,
ideas .s50 The protections afforded expressive associations "is not reserved for advocacy groups.
But to come within its ambit, a group must engage in some form of expression, whether it be
public or rivate."51 Pursuits or activities that may bear on a
p y group's classification as an
expressive association include community service, transmitting a system of values, and civic,
charitable, lobbying, or fundraising activities."52
The Pi Lambda Phi Court even stated that the threshold for
expressive associations is "de minimis."53 Though the court held that the Chapter in that case
was not an expressive association, it admitted that it was "not holding that fraternities per se do
not engage in constitutionally expressive association."54
The Chapter, like the Colony in the Alpha Epsilon Piss case,
qualifies as an expressive association because it engages in social, educational, religious, and
cultural expression. Further the Chapter has a set of purposes, including brotherhood, character,
learning and scholarship, leadership, financial responsibility, social and community service,
personal growth, and social development that entitle it to protected status as an expressive
association.
49 Roberts, 468 U.S. at 622.
50 Id. at 623.
51 Boy Scouts ofAmerica v. Dale, 530 U.S. 640 (2000).
52 Chi Iota Colony of Alpha Epsilon Pi Fraternity et al. v. City University of New York et al. 05-CV-2919 at 28
internal citations omitted).
s Pi Lambda Phi, 229 F.3d at 443.
54 Id. at 444.
55 In that case, the court found that the Colony was an expressive association, but denied the requested injunctive
relief based on the expressive association claim because the Colony did not clearly show that admitting woman
would significantly affect the Colony's expressive purposes. Chi Iota Colony of Alpha Epsilon Pi Fraternity et al
v. City University of New York et al. 05-CV-2919 at 34.
26
The Chapter engages in social expression by creating an
environment in which deep bonds are established amongst the members that carries the students
through the undergraduate careers and into their lives after college. The very nature of the
Chapter is to develop a support system in which the brothers both assist and rely on each other
on a day to day basis. For example, the Chapter's pledge program includes a project and a
philanthropy event. The pledge project often involves the entire chapter in which the pledges
and members spend time together, getting to know one another, learning from one another, and
accomplishing something positive. The philanthropy event, while benefiting the community,
gives the pledges a chance to immerse themselves in a beneficial activity that lets them work
together, developing trust and teamwork. Recent Chapter pledge philanthropies examples
include raising money for the American Red Cross to aid in Hurricane Katrina relief and
participating in the American Heart Association's Heart Walk.
The Chapter maintains a mission to develop values-based leaders
committed to the betterment of character, campus and community. Leadership is an important
theme that is ingrained in the members of the Chapter. In addition to taking advantage of the
leadership opportunities the Chapter affords, the current members are also leaders on campus and
in the community. Current members either hold or recently held the following campus and
community leadership positions: Class of 2008 Vice-President, member of the Dickinson
College Judicial Peer Review Board, Peer Tutor, participant in the Study Buddy Program at a
local elementary school, officer of the Society of Physics Students, Vice-President of the Student
Pennsylvania State Educational Association, Rugby team captain, Player-coach of the Ice
Hockey Team, ROTC House Manager, editor of the Square (a school publication), and student
senator. Further, the group of students who desire to become members of the Chapter includes
27
one student who is the Class of 2008 Vice-President and the President of the Young Republicans,
another who is the President of the Class of 2009 and another is the captain of the Dickinson golf
team.
Learning and scholarship are natural functions of the Chapter. The
Chapter focuses on academics and currently maintains a cumulative grade point average of
approximately 3.13. Further, the Chapter's combined grade point average in the most recently
completed semester was even higher. The most recent statistics from the College show that no
officially recognized fraternity on the College's campus has a total grade point average over 3.0.
Learning, as one of the three core values of Sigma Chi, is essential to all aspects of the Chapter.
To promote learning and scholarship, the Chapter created a detailed program entitled the
Omicron Educational Incentive Program ("OEIP") in which members are rewarded financially
for academic excellence and improvement. 56 At least nine different members are rewarded each
semester. Two scholarships, the Sigma Chi House Fund and the Lester T. Etter Scholarship
Fund, also exist to benefit members of the Chapter. Sigma Chi just recently awarded the Chapter
with the Legion of Honor Award for the Chapter's scholarship programming.
Additionally, the Chapter is extremely active in the community.
The Chapter has recently assisted the following organizations in the region: the American Heart
Association, the Harrisburg Downtown Daily Bread, the Carlisle YMCA, the Winterfest-
Children's Miracle Network, the Special Olympics, the MS Walk, and the Salvation Army.
Likewise, individual members are extremely active in the community.
Because the Chapter qualifies as both an intimate and expressive
association just as the Colony it the Alpha Epsilon Pi case did, it is therefore a constitutionally
56 Details of the OEIP are attached as Exhibit J.
28
protected association. The College is contractually required to respect the constitutional
associational rights of its students. The College is in breach of that contract.
E. The Requested Injunction is Suited to Abate the College's Wrongful Conduct
The wrongful conduct in this case is the College's broken promises and breach of
contract to its students. The College promised its students the same constitutional associational
rights that other citizens enjoy. The right to freely associate is one such right promised to
Dickinson students. The College breached its contract by threatening to expel students who
choose to exercise their rights to freely associate together off campus as members of the Chapter.
The requested injunction seeks to permit the Chapter and Dickinson students to freely associate
pending a full hearing. Plaintiffs are not seeking official recognition from the College, but
simply want the right to exist as an entity in Carlisle comprised of Dickinson students.
F. The Iniunction Will Not Adversely Affect the Public
As stated above in Section III, 2, the public will not be adversely affected by the
requested injunction. In fact, the other students at the College will benefit by having the freedom
to join off-campus organizations of their choosing. Further, to reiterate, the Chapter will not
operate without supervision and regulations. The Chapter fully acknowledges that its members,
in addition to having to follow state and local law, also must comply with the College's rules and
regulations concerning student behavior. Further, both Sigma Chi and the Omicron Housing
Corporation oversee the day to day activities to ensure the Chapter complies with their rules and
regulations.
Simply stated, the requested injunction will benefit the Chapter but will not harm
the public in any way.
29
IV. CONCLUSION
This Motion and Memorandum simply seeks to enforce the promises and contracts the
College made to its students. The College promised its students and the Plaintiffs the same
constitutional rights and privileges that other citizens enjoy. The Chapter is a protected intimate
and expressive association under the Constitution of the United States. The requested relief is
necessary to ensure the Chapter survives and expands beyond the current membership. Absent
such relief, the Chapter will cease to exist after nearly a century and half in Carlisle.
Respectfully submitted,
?-- IX **,.
Ti othy M. Burke
Daniel J. McCarthy
MANLEY BURKE
A LEGAL PROFESSIONAL ASSOCIATION
225 West Court Street
Cincinnati, Ohio 45202
Telephone: (513) 721-5525
Facsimile: (513) 721-4268
Email: tburke@manleyburke.com
Kevin anavan -
Thom Ollason
SWAR CAMPBELL
1601 Market Street, Floor 34
Philadelphia, PA 19103
Telephone: (215) 564-5190
Facsimile: (215) 299-4301
Email: kcanavan@swartzcampbell.com
Counsel for Plaintiffs
30
Dickinson College - Print Page Page 1 of 3
Allimalk
DICKINSON COLLEGE
Doawom Couaot, PO E3on 1T73, CAqubct, PA 1711:13, 717-243-5121
http://dickinson.edu/aboutthistory.htmi
THE DICKINSON STORY
'The business of education has acquired a new complexion by the independence of our country."
The Birth of a New College
- Benjamin Rush
Revolution was in the air when Benjamin Rush, a prominent Philadelphia physician, prepared the charter for Dickinson
College in 1783. A grammar school founded in Carlisle in 1773 served as the foundation of the new college. In the decade
prior to laying the groundwork for Dickinson, Rush had marched alongside the American army, signed the Declaration of
Independence, served as a physician to the Philadelphia community, and maintained his eminent position among the
progressive political and intellectual minds of the budding nation. He was a revolutionary In the midst of a revolution.
At his core, Rush believed in freedom-freedom of thought and freedom of action. And he believed fully in America's
potential for unprecedented achievement. But Rush also believed that the American Revolution did not end when the
muskets stopped sounding; that, he felt, was only the beginning. Now that America had fought for its liberties, Americans
needed to maintain a nation worthy of those liberties. Rush knew that America could only live up to its own expectations if it
was a country built of an educated citizenry. So seven years after he met with other members of the Constitutional
Congress to add his signature to the Declaration of Independence, Benjamin Rush signed the charter of a new college on
what was then the American frontier. On September 9, 1783, a struggling grammar school in Carlisle was transformed into
Dickinson College. Less than a week earlier, the Treaty of Paris had officially ended the Revolution and guaranteed
international recognition of the United States of America. Dickinson was the first college charted in these new United
States.
Tuts ffbertes. Those were the words that John Dickinson used describe the new college. Tuta libe?tas-"A bulwark of
liberty." To further his educational enterprise, Rush had asked that Dickinson-known widely as the "Penman of the
Revolution" and the governor of Pennsylvania-lend his support and his name to the college that was being established in
the western frontier of his state. Dickinson was easily convinced, and together he and Rush set about the task of devising a
seal for the college. The image they created-featuring a liberty cap, a telescope, and an open Bible-remains the official
college seal today. It represents a mission that has been ingrained in Dickinson College for nearly 225 years: to offer
students a useful and progressive education in the arts and sciences, an education grounded in a strong sense of civic
duty to become citizen-leaders.
In many ways, Benjamin Rush-the man who set this enduring mission in place- was a man before his time. He was an
outspoken opponent of slavery, a vocal proponent of equal education for women, a supporter of the rights of the mentally
challenged, and a generous provider of health care to the indigent in Philadelphia. His voice was strong and distinctive, and
he believed that the students at Dickinson College could, like him, develop their own voices and positions on issues of the
day. They could be leaders and shapers in the new nation.
The Shape of the Story
As the site for this endeavor, Rush chose Carlisle, a town founded in 1751 as the seat of Pennsylvania's Cumberland
County. Though a center of government, Carlisle was also a frontier town, located about 25 miles west of the Susquehanna
River-at the time, an outpost of westward expansion (unlike today, when Carlisle sits at a central transportation crossroad,
with Washington, D.C., Baltimore, and Philadelphia just two hours away). It's safe to assume that this combination of
activity and uncertainty would have attracted a man with Rush's educational sensibilities.
From the first, Carlisle was seen as a sort of laboratory for learning-a place, for instance, where Dickinson students could
venture from campus to the nearby county courthouse to watch the new American judicial system in action. But it was also
a place where, a few decades later, science students could study ecology by actually examining the wilderness of the
surrounding Appalachian Mountains. (Dickinson was the first college to introduce field studies into its science curriculum.)
These sorts of firsthand experiences, Rush believed, would foster the minds that would lead the next generations of
Americans. Time has not diminished Rush's ambitions. Today, this engagement with the wider world continues to guide
Dickinson-through intemships, field studies, workshop science, and one of the most extensive global education programs
in the nation.
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Dickinson College - Print Page
Page 2 of 3
In 1784, at the first official meeting of the college's trustees in Carlisle, a Scottish minister and educator named Charles
Nisbet was elected the first principal, or president, of Dickinson College. Nisbet had been a supporter of the American
Revolution and was well known among America's intellectual circles as an impressive man of leaming. Sometimes called a
"walking library," Nisbet established high standards of education and scholarship for Dickinson students. Because of these
unbending expectations, the college can list among its earliest graduates a U.S. President, a pair of college presidents, two
justices of the Supreme Court, a governor, a founding father of the Smithsonian Institution, and at least two abolitionists.
The Dawn of a New Century
As the college grew in population and prominence, Nisbet and the other college leaders decided to construct a new
"edifice" to serve as the center of campus-and to allow Dickinson to move out of the old grammar school that had been its
home since its founding. Called "New College," the building was constructed slowly, over a period of four years. In 1803, as
the college prepared to settle Into New College, a blustery snowstorm pushed through the Cumberland Valley, stirring
some smoldering ashes in the building's basement. The ashes began to flame, and before long the building had burned to
the ground.
Despite the initial despair (Col. John Montgomery, a U.S. Congressman and longtime Dickinson trustee, wrote to inform
Rush of the fire, lamenting that all of their hopes "were Blasted in a few minutes', hints of good fortune soon began to
ameliorate the situation. For instance, Benjamin Latrobe, architect of the U.S. Capitol, offered to draw up plans for a new
college hall. And private donations from individuals such as Thomas Jefferson and James Madison ensured the
reconstruction of Dickinson College in swift fashion. Though Charles Nisbet would not live to see its completion, West
College--or Old West, as ire commonly called-hosted its first classes in November 1805.
After his death, Nisbet was remembered as one of the most successful college presidents of his day. Ire not surprising,
then, that his standards of excellence held strong after his passing. His sensibilities remained integral in the life of the
college. In 1812, for example, the college trustees authorized the purchase of Joseph Priestley's scientific equipment,
which gave Dickinson state-of-the-art research capabilities in the sciences. (One of the pieces, a lens, is believed to have
been used by Priestley in the discovery of oxygen.) It was this dedication to excellence and innovation in education that
enticed the world-renowned chemist and social reformer Thomas Cooper to join the faculty as Dickinson's first chemistry
professor. Thomas Jefferson, a contemporary, remarked that Cooper was "the greatest man in America in the powers of
the mind and in acquired information, and that without exception."
Academic prowess, however, was not necessarily aligned with economic and political prosperity. A combination of financial
straits and faculty dissention led to a college dosing from 1816-1821. Over the period of several years, the trustees
managed to overcome both of these hurdles. Barely a decade later, however, strife hit the college again. In the midst of the
ongoing financial pressures of the early-nineteenth century, Dickinson's faculty launched into a heated, often bitter, debate
about the shape of the college's curriculum. In 1832, when the trustees were unable to resolve the issue, they ordered
Dickinson's temporary closure.
Nonetheless, the following year, under the leadership of John Price Durbin, Chaplain of the U.S. Senate, Dickinson College
was revitalized. Teaching innovations, like Spencer Fullerton Baird's natural-science field trips (Baird, an alumnus and
professor, later helped establish the Smithsonian Institution) and Charles Francis Himes' use of photography to teach
chemistry, continued to enhance and distinguish the college's curriculum. Dickinson's law department, which was
established in 1833, became the Dickinson School of Law in 1890, and since 1917 has been independent of the college.
This track record of innovation has continued into Dickinson's modern history-for instance, in the 1980s Dickinson physics
professor Priscilla Laws worked with colleagues to develop the widely used "workshop science" curriculum, in which
hands-on learning and experimentation (rather than a steady diet of lectures) is at the core of classroom activity. And these
innovations know no boundaries. In 1965, for example, Dickinson established a college-run study abroad program in
Bologna, Italy. Since then, Dickinson has sculpted one of the nation's most extensive global education programs, currently
consisting of 32 programs on six continents.
Since its early years, the college has emphasized the importance of leaming-academically and socially-beyond the
classroom. Nineteenth-century students were involved in athletic dubs, social dubs, and Greek letter societies. In fact, the
first Pennsylvania chapter of Phi Beta Kappa was started at Dickinson in 1886. The college's first Greek fraternity was
chartered in 1852. The college newspaper, The D/cWhsonfan, was founded 1872, placing it among the oldest ongoing
newspapers in Pennsylvania. And the college's first intercollegiate football game was played against Gettysburg in 1879.
The Growth of a College
During the first half of the twentieth century, Dickinson College weathered-with firm resolve-the difficulties posed by World
Wars I and II and the Great Depression. Through curricular changes, the faculty found new ways to challenge its students,
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Dickinson College - Print Page
Page 3 of 3
including one professor who began teaching a course on the World War II a year before the United States even entered the
conflict-a risky enterprise, considering the national sentiment, led by President Franklin Delano Roosevelt, that America
would not get involved in the war. In the midst of the cultural maelstrom, the college trustees found the means to help
Dickinson grow, more than doubling the size of the campus and Increasing the student enrollment fourfold. During these
years of international caution and isolationism, Dickinson developed exchange programs to bring foreign students to
Carlisle, and likewise the college began to send Dickinsonians abroad.
In the latter part of the twentieth century, Dickinson College continued to enhance its liberal arts curriculum, diversifying
traditional disciplines to allow a wide variety of interdisciplinary and area studies opportunities. The college is home, for
example, to one of the only community studies centers in the nation, where students can perform field research and take
oral histories in local communities from different academic perspectives. Also, Dickinson houses the national headquarters
of the Oral History Association and is home to the preeminent study-abroad journal, Frontiers.
The college's cross-disciplinary approach has led to strengths in international education, the natural and mathematical
sciences, the arts, and pre-professional preparation. The curriculum has been further enriched by freshman seminars,
internships, and cooperative student-faculty research and publishing. Over the past 10 years, 61 percent of all student-
faculty research at Dickinson has resulted in published papers in professional journals, and 28 percent of those findings
were presented at national and intematonal conferences
An Eye to the Past, A Foot in the Future
Proud of its heritage and true to the vision of its founders, Dickinson College remains committed to its historic mission: to
prepare young people, by means of a useful and progressive education in the liberal arts and sciences, for engaged lives
of citizenship and leadership in the service of society. As it looks toward the future, Dickinson is ever mindful of its
revolutionary roots: unafraid to take risks, to speak out on important issues, to remain decisive and competitive and
committed to its own brand of the liberal arts- academically rigorous, useful, and unapologetically engaged with the world.
If you would like to learn more about the history of Dickinson College, please visit Chronicles.
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Dickinson College
STATEMENT OF PRINCIPLES
Often-Leaders -- A defining charaderlstk of members of the Dickinson Cd/ege community.
Page k of k
To prepare our students to be active, engaged citizens of the world and to educate them for positions of leadership in their com
nation, and around the globe is a strategic obfma dve of this College. Dkddnaon's deffnftn of citizenship, drawn from the Colleg
the American Revolutionary era, centers on using Its own community to Instill habits of independence (as farmed by the interp
freedom and nwponsibiNty), self-govamance, respect for and service to Ideals greater than the Uav/dual aelf, and recognition
education advances dtizenahip and substantive profes°s/onat and personal cwtidbutions to society. (Dkkinson College, strat
2000)
httP://www.dickinson.edu/student/code.htmi
.. g S n..'ra::
4/712006
• Enhance the extra and co•curricular programs of the College and
* contribute to the life of the campus through participation in and
support of programs and activities.
• Provide structured opportunities for self-governance, leadership
and management skill development.
• Serve as a vehicle to Involve students In service to the College
and Carlisle communities.
• Provide the opportunity for career and professional networking.
• Foster a life-long affiliation with Dickinson College.
s. Each semester, all fraternities and sororities are required to submit a
Gold Star Accreditation report, and every spring all fraternities and
sororities are required to submit their President's Cup Evaluation report
r, as directed by the Office of Greek We. This on-going accreditation and
evaluation process creates opportunities for the College to communicate
to each fraternity and sorority the College's expectations, areas of
excellence, and areas that need Improvement. The basis of this process
is to create an environment for conversation, trust and support between
the College and Its fraternities and sororities to insure success for all
involved.
Students' Rights as Citizens
Q College students are both members of the academic community and
citizens. As citizens, studhts should enjoy the same freedom of speech,
peaceable assembly, and right of petition that other citizens enjoy. The
College shall not Inhibit such Intellectual and personal development of
students as may be prompted by their exercise of these rights both on
and off campus.
Students who violate the law may incur penalties prescribed by civil
authorities. College authority shall never be used merely to duplicate the
function of civil laws; only where the College community's pursuit of Its
educational objectives is distinct, and clearly involved, shall Its special
authority be asserted. The student who, In the course of his or her off-
campus activities, incidentally violates,College regulations (such as those
relating to course assignments) shall be subJect to no greater penalty
than would normally be Imposed on campus. College action shall be
independent of community pressure.
The College shall clarify those generar standards of behavior which it
considers essential to its educational objective and its community life.
These general behavioral expectations and the resultant specific
ID regulations shall represent a reasonable regulation of student conduct in
areas which have persuasive relevance to the educational aim of the
College. Students detected or arrested in the course of violations of
College regulations or Infractions of ordinary law shall be Informed of
their rights. No form of harassment shall be used to coerce admissions of
guilt or information about the conduct of other suspected persons.
Unless convicted on charges brought against him or her, a student shall
not have his or her status altered nor shall his or her right to be present
on the campus and to attend classes be suspended, except for reasons of
individual or community safety.
J 63
Dickinson College
Page 1 of 1
Student Rights and Responsibilities
College students are both members of the academic comnwnity and citizens. As citizens, students should enjoy the same free
speech, peaceable assembly, and right of petition that other citizens enjoy. The College shall not inhibit such intellectual and p
development of students as may be prompted by their exercise of these rights both on and off campus.
hriP://www.dickinson.edu/studeriVeode.html
4/7/2006
Inter-Fraternity Council
Dickinson College
Official Resolution
Whereas: the primary goal of the Inter-Fraternity Council at Dickinson College is to enhance the
Greek community on campus, and to promote a better relationship between each chapter and the
Greek community and the college.
Whereas. Dickinson College has a Greek community made up of eight Fraternities and four
Sororities.
Whereas: the loss of any Chapter comes at a grave cost to the entire Greek community at the
college.
Whereas: the end of a Chapter on campus would be severely felt by the entire Greek community.
Whereas: a key to any Greek organization is the execution of a successful recruitment program
that results in now members that can continue the operation and membership of the chapter.
Whereas: at Dickinson every chapter is given the opporamity to recruit new members through a
structured recruitment process dictated by a specific time period The rules of Dickinson College
dictate recruitment for men's Fraternity Rush to held in the Spring, and to last for a period of no
longer than one week.
Whereas; for most Chapters this st uctured rush process presents few, if any, problems.
However, when there exists extemua6Ag.cinvmstances, in which a Chapter, after the completion
of a well-executed, time-intensive recruitment effort, does not receive a new member class there
needs to be a process for ensuring the chapter has an opportunity to continue to rebuild and
reorgauim In such a situation, it is necessary for that Chapter to be allowed a secondary
process to facilitate the development of a new member class so that a chapter does not fail and go
out of existence. It is imperative to bond as a Greek community and to aid this Chapter in its
attempts to reach beyond the' formal Rush" period, and to obtain a new member class.
Whereas: the Omicron Chapter of the Sigma Chi Fraternity, comprised of seven Brothers, after
performing a well organiz KL aggressive, outreaching recruitment process, has not gained a new
member class. Without a new member class, Omicron will cease to exist in the very near fudme
as it is likely there will only be two or three active members present on campus next spring.
Whereas: the Omicron chapter is in a unique set of circumstances this semester.
• The chapter has no house and will not have a house for a number of years.
• The chapter is on staid susp;nsion for a number of years.
The chapter has recently completed a membership review
The chapter's membership review resulted in over 2/3 of its members being
removed from the organization.
• The chapter's old members may have engaged in actions during the rush
process that deterred potential new members fi m joining.
?.C?R C?+ t T hN,'.
DC0122
The chapter has seven members, two of whom are seniors-
The chapter's. existing members are committed to rebuilding and reorganizing
the chapter.
Whereas: The following men have approached the brothers of Sigma Chi about the prospects of
creating a new member education class for this year becasue the charter did not get a new
member class tbrougb the traditional rush process. The men, listed below, indicate they are
committed both to participation in a new member education program this semester and the full
won and rebuilding of the chapter.
Brennan, Sayre Harrison, Mirk
Case, James "Everett" Kupchik, Andrew
Cortese, Patrick Lyon, Jeremy
Coyle, Patrick McCoy, John "Wes"
Cresci, Christopher Reisig, Andrew
Dominick, Scott
Be it resolved: that the Inter Fraternity Council of Dickinson College endorses a one time
opportunity for the Omicron Chapter of Sigma Chi to create a new member education class
comprised of the gentlemen listed above, so the chapter can continue it's 145 year heritage on
the Dickinson College campus. The IFC recognizes the very unique circumstances experienced
by the Onucron Chapter of Sigma Chi Fraternity at Dickinson College and believes this action is
necessary to allow the chapter to continue to rebuild and reorganize- The chapter shall be able to
estabkish a one time event where the men listed above can formally accept an invitation to join a
new member education class for the. chapter. The chapter must notify in advance both the IFC
and the college of the time, date, place, and duration of the event.
Be it resolved: that the new member education program will begin and end during the allowed
time frame of the college. It will start no sooner then March 23, 2004, and will and with the
initiation of the new Brothers on April 2, 2004.
Be it resolved: the IFC will formally notify the liege and Sigma Chi of its adoption of this
resolution, approved on IwR 2004.
Signed,
?X President, Interfr#ternity Council
f
4
DC0123
OFFICE OF STUDENT ACTIVITIES
December 3, 2004
To the Men of the Class of 2008,
A few days ago, you received a letter dated November 30, 2004 from Rudy Kelly, Interfraternity
Council President, and Adam Alexander, Interfraternity Council Recruitment Chair, that letter
contained a "Notice" prepared by the Office of Student Activities. The Notice contained
erroneous information and needs to be clamed. Please consider the following Notice in place
of the one contained in the letter dates November 30, 2004:
Notice
Kappa Sigma Fraternity and Sigma Chi Fra?- t y are no longer recognized by Dickinson
College. There is no current affiliation between either fraternity and the College. Consequently,
these organizations are barred from participating in the College's recruitment process to attract
new members to fraternities. The College supports the recruitment efforts of the recognized
organizations only.. If you choose to pursue membership in a fraternity, we encourage you to
look to the recognized fraternities' only.
Dickinson College respects the right of each student to choose to affiliate with organizations of
his own choosing on or off-campus. There are no consequences under the Community's
Standards based upon the decision to affiliate or join any particular off-campus organization.
We apologize for any confusion our earlier message may have caused.
Sincer ly,
?rr,r
Jason M. Feiner
Asst. Director of Student Activities & Director of Fraternities
Holland Union Building PHONE 717-245-1671 The first college chartered in
Dickinson College ?Ax 717-245-1899 the newly recognind nation
P.O. Box 1773 WEB www.dickinson.edu Sepitmbery 1783
Carlisle, Pennsylvania 17013-2896
n rA.
March 25, 2005
Dear Sigma Chi Alumni:
We would like to update you on some matters regarding the Omicron Chapter of Sigma Chi. As you know
from a previous communication from the College, the Omicron Chapter is no longer recognized by Dickinson
as an official Greek organization on campus. However, the Chapter does continue to be recognized by the
international Sigma Chi Fraternity. As such, the Chapter continues to exist as an organization, although
completely separate from Dickinson College.
Because of this dual status, decisions needed to be made with regard to two existing. scholarship funds
connected to Sigma Chi - the Sigma Chi Scholarship Fund and the Lester and Dorothy Etter Scholarship Fund
- so that students could continue to benefit from these important funds. As background, the Sigma Chi
Scholarship Fund was established through a trust agreement concerning the proceeds from the sale of the Todd
House in 1965. The funds were held in trust by the College for the purpose of establishing the Scholarship
Fund that was available to active Sigma Chis or relatives of former members. In that agreement, it stated that if
Sigma Chi ever ceased to exist at the College through the action of the College, the money would revert back
to the Chapter. The Etter Scholarship was established to honor both Les and Dorothy for their commitment to
the Omicron Chapter. As such, the funds were contributed to Dickinson as part of the College's endowment
with annual awards being made'to active Sigma Chis by a committee of current and alumni members.
Given the current status of the Chapter, both the House Corporation and the College felt it necessary to come
to agreement on how these funds should be administered keeping in mind the prime importance of benefiting
students. After significant work by both alumni and College representatives, we are happy to report that this
has been accomplished. Therefore, in accordance with the original trust agreement, the Sigma Chi Scholarship
Fund monies have been released to the national Sigma Chi Foundation for use by Omicron members. Monies
totaling $132,981.64 were released to the Foundation in February. With regard to the Les Etter Scholarship,
the College will continue to award the scholarship to current students based upon mutually acceptable criteria
so that the memory of this legendary Omicron will live on for the future.
Along with the update on the scholarship monies, we also felt it important to convey to all Sigma Chi alumni
that while there is no longer a relationship between Dickinson College and an active undergraduate Omicron
Chapter, the College is committed to supporting alumni relations activities with Omicron alumni (i.e. Alumni
Weekend events, communications, etc.) The Office of College Relations will continue to work with Sigma Chi
alumni leadership to organize and communicate events as appropriate.
if you have any questions or concerns regarding the information contained in this letter, please feel free to
contact us.
Sincerely,
Dickinson College Omicron Chapter
/L e
Robert J. Massa Donald R. Zane '68
Vice President, Enrollment and College Relations President, Chapter House Corporation
771e first college chartered in the newly recognized nation • September 9, j783 IQ
P.O. BOX 1773 • CARLISLE, PENNSYLVANIA 17013-2896 • PHONE: 717-243-5121 • WEB: www.dickinson.edu
Page 1 of 1
Dan McCarthy
From: BMCatMCA@aol.com
Sent: Thursday, July 27, 2006 11:21 PM
To: Mrc1859@yahoo.com; SAPOCHQbloomberg.net
Cc: craig.wolfcQwwswa.org; MARock@up.com; rlong@nma.org; lyonj@dickinson.edu;
robbe.bendickc@mail.house.gov; kelleyj@dickinson.edu; ZANE159Qaol.com;
JJeffDl Dit@harrisburghel lo. com
Subject: Congratulationsl
Brothers--
Congratulations on Omicron having been named a 2006 Peterson Significant Chapter!
I know how hard everyone - Active and Alumni - has worked not just to keep the chapter on a survival basis
but to really reach for the stars under the most adverse of conditions. Your accomplishments speak for
themselves and I couldn't be more proud!
All best & IN HOC,
-Bruce
Bruce Morgan Casner E71
Chairman,
Board of Grand Trustees
Sigma Chi Fraternity
1332 Independence Avenue SE
Washington DC 20003
(202)543-4600
7/31/2006
OFFICE OF THE DEAN OF STUDENTS
DIVISION OF STUDENT LIFE
February 1, 2006
To the members of the Omicron Chapter of Sigma Chi
Jeremy Lyon Josh Erhardt Michael Ciatto
Andrew Reisig Mark Harrison Christopher Harris
Joseph Kelley Jason Klepic Alex Holmes
Patrick Cortese Wesley McCoy Nick Peper
Patrick Coyle Graham Rockwell Ricky Reed
Chris Cresci Patrick Sheahan Steven Reid
Concurrently with this message, you have been provided with the message to the first year men
of Dickinson College and their parents which explains the College's position on membership in
an expelled or unrecognized organization. There is no mistake about where Dickinson College
stands on this issue. Membership in such organizations is not tolerated. For the one man who
was admitted to Sigma Chi before its expulsion, continued activity in the expelled Chapter,
particularly with respect to recruiting and initiation of new members, is equally forbidden.
To the extent that this standard may not have been as clearly stated earlier, there is no doubt in
the College's mind that based upon the many conversations which have occurred between the
College and the Omicron Chapter following its expulsion, including its alumni, you have known
that membership in Sigma Chi was not approved by the College and that recruiting and
engaging in membership activities on our campus was absolutely banned.
We are, therefore, advising you of the College's position with respect to you in particular. Due
to the lack of clarity on the extent of the potential consequences of membership in Sigma Chi to
this date, the current members of the banned Omicron Chapter of Sigma Chi are advised that
no member will be suspended or expelled by Dickinson College based solely on his decision to
join Sigma Chi in or before 2005. Any new members admitted in 2006 will be subject to the
policy stated in the accompanying message.
Having granted you this assurance, each member is also advised that an
Dickinson College to its students are immediately subject to being withheld orrvwithdrawn ofrom by
members of the banned organization. Each one of these privileges at risk is within the
discretion of the College to grant or to withhold. Such privileges include the bestowing of
academic honors (including Dean's List), receiving letters of recommendation from the College,
acting as an official representative of the College (including participating in intercollegiate
athletics, and working as members of Residential Life staff or Admissions Office tour guides),
and eligibility for merit-based financial aid (whether new or renewal of previous awards). There
are also academic honorary societies on Dickinson's campus which have a good character
component to their individual selection criteria, and you should be aware that membership in a
77'e first college chartered in die newly recognized nation • September 9, 1783
F.O. EOX 1773 CARLISLE, PENNSYLVANIA 17 013-2 99 6 PHONE: 717-245-1639 FAX 717-243-8944 WEB: www.diddn k?
i
banned organization may be taken into account by these organizations in extending invitations
to membership, as well.
Further, should Dickinson discover any recruiting or membership activities by Sigma Chi from
this day forward, the current members of Sigma Chi will face immediate expulsion from the
College.
Finally, nothing in this message excuses your individual responsibility from otherwise complying
with the policies and procedures of Dickinson College.
I am more than happy to meet with you individually or collectively to discuss this situation
further. If you would like to meet, please contact me at 717-245-1556 or
malonem[a?dickinQ nom.
Sincerely,
tb
.
h
ae .Malone
Acting Dean of Students
Cc: Mark V. Anderson, Sigma Chi Executive Director
Don Zane, Omicron Chapter Alumnus
Lon Haines, Omicron Chapter Alumnus
Bill Sapoch, Omicron Chapter Alumnus
Jeff Munson, Omicron Chapter Alumnus
OFFICE OF THE DEAN OF STUDENTS
DIViStON OF STUDENT LIFE
February 1, 2006
To the Men in the Class of 2009
To the Parents of the Men in the Class of 2009
Recently, you received a letter informing you about the opportunity to participate in
Greek Life at Dickinson College. Included with this information was a notice that
affiliation with an organization not in good standing with the College could have adverse
consequences for the individual making this choice. A number of questions about the
meaning of this notice have been received. This message is intended to explain and
clarify the College's position.
The mission of Dickinson College is to prepare young people, by means of a useful
education in liberal arts and sciences, for engaged lives of citizenship and leadership in
the service of society. The College's residential living-learning environment has a
distinctive role in the preparation for lives of engagement and high accomplishment. In
order to create and maintain the best conditions for achieving our mission, the College
provides and promotes a residential community of learners that is safe, inclusive, and
welcoming. Organizations that operate on this campus do so within a framework that
allows the College to direct, guide and counsel students through an educational process
on the journey toward citizen-leadership.
The oversight of Greek organizations provided by the College improves the responsible
governance of each group and Increases the health of the Greek system by defining
and clarifying expectations, rights, and responsibilities of all participants. The
recognized Greek organizations themselves play a significant and vital role in
supporting and sustaining the system.
Prior to the drafting of this letter, College officials met with the leadership of the
Interfraternity Council (IFC). In the course of the meeting, IFC members
(representatives of the recognized campus fraternities) expressed considerable concern
regarding the operation of unrecognized fraternities. The issues raised in this letter,
including the consequences noted, are congruent with the issues raised by the IFC and
a forthcoming IFC resolution.
With recognition, the College is also able to address incidents or patterns of negative
behavior on the part of Greek organizations. Even in this context, there are educational
opportunities for reforming conduct and inspiring leadership.
The first college chartered in the newly rewgmttd nation • September 9. +783
P.O. BOX 1773 • CARLISLE, PENNSYLVANIA 17013-2896 PHONE: 717-245.1639 • FAX; 717.245-8944 • WED: wwwdickinson.edu
Those organizations which are not recognized by the College deny students the
residential educational experience that characterize the Dickinson fraternities and
sororities and Interfere with the College's mission of a residential educational
experience. Fraternities or sororities which have been expelled not only lack the
standards required by the College for safe, responsible leadership, they have been
judged by the College to fall below these standards. Such judgment is never reached
lightly.
Consequently, when students choose to join unrecognized Greek organizations or
organizations which have been expelled or suspended by the College, their individual
actions run contrary to the College's educational objectives. Their participation in these
organizations does not offer the educational opportunities provided by College
recognized organizations and their membership threatens the integrity of the College
system.
Students who choose to join banned, suspended or unrecognized organizations or
colonies fail to comply with previously communicated expectations of the College. To
the extent that the prohibition on joining unrecognized fraternities, sororities or colonies
of such organizations was not clearly understood, let this memo clarify the issue.
Membership in an unrecognized, expelled or suspended fraternity or sorority or
affiliation with colony of any such organization is not permitted.* The typical
sanctions for such membership or affiliation are suspension or expulsion from Dickinson
College.
We trust that this message clarifies the College's position on why there are
consequences for individuals who choose to join suspended, expelled or unrecognized
Greek organizations. Should you have any remaining concerns, please feel free to
contact me at 717-245-1556 or malonem@dickltison.edu.
Respectfully,
7ic ??
h el S. Malone
Acting Dean of Students
• The recognized fraternities at Dickinson College currently are Delta Sigma Phi, Phi
Delta Theta, Phi Kappa Psi, Phi Kappa Sigma, Sigma Alpha Epsilon, and Theta Chi.
No organization has been granted authority to colonize.
02/05/2006 12:05 9545250023
C L ASSOCIATES PAGE 02
C "ICE Q. T"K DRAW CY ST-JUIX7•8
r)"ISIO14 or ITUaawr L,ra
February 6, 2oog
To the members Of the Omicron Chapter of Sigma Chi:
Jeremy Lyon Josh Erhardt Michael Ciatto
AndrewRfisig Mark Harrison ohrlag
wHarris ?
Joseph Kelley Klep Alex Holmes
Patrick Corte o Wesley McCoy Nick Paper y
Patrick Coyle Graham Rockwell Ricky Read
Chris Creed Patrick Sheehan Steven Reid .41
On February 1, 2006. the current membership In Sigma Chi rowNed a mossage advising you of
the Cotieoe's position with respect tc the imPed d Your dr ololm Io loin Sigma ChL Ybu wart
advised that no mwrtbar will be suspended or exp w by Dickinson CoUp based" solely an Hiss
dedslon to join Stme Chi In or betbre 2005.
You Were also told that oadoin pavyp0saRarded by Dicddnam Colepe to its Mudenb had
?e ?t of ublsat to W*Q wlihheid ar wftra n i? of y4 banned
PrIVI" Included the bsstmft Of academic hoWrs
lawn's List), recWft tetriSm of tDOWWWWodon (Mpts,Niinp
repreeerrtatiw of the TMs" ft Canoga, acing as eh atlldcl
CoWge OrWhAirg Perticipefing In h*M0011081:to athistlcs. and Woking as
members at Residential Lffe sniff or Admleslarls OMM tout gutdse), WW etipibW for rnedtr
teased tinandai aid (v ether now or rsnswst of previous awards).
App Mft, them remains same COnk sion about the Co fts's previous rmasg% We are,
therefore, tskirrp this opportunity tD once again c?srtfy and =nfnuniceba our p061110ra.
• ""br x Of8/prrra Chi Wfas Ha asV/sue. Thoee members of me Chi who
(oil suspended or n whAe It was rertognW by the CdiMp and good aWding
(nWO solely an their expelled), Are riot a Aod to ? or wi ink of pgvIeW
membership In the ire w, Ity. NowMer. lbws merTib" ti
a0gUft
actAN" hdd y and colledlwyfor any Segues CH facxuttinp "Or membership
In any students ft M this p01nt forward. It > Chi
wa to sc lheof ' each iridividuld nterNWvA be
ndalso rqnvM
rl?sporlsI If for they i<N
" conduct tinder tide Cwh ? ir my Sbw m di
Thb
statWn&t rdbkU a ChuVe fm m the y ATE:
prw?s) message of February 7, 200E with reaped to
•mhdW°f
Who Mned -qWM ON vkx oraArft , Those
durfig the "Hod of lb s:ISpension or flowing its
her- -aW, w.*va is Nnr.w,lr m+gfm?,..*.. SrN?af+i w +,,!
tiu •qa i77? • cwru•,s riwwn?+aw? gan.y?gr . y p„,,.7C' sus ,b?Y M4N:7y2I-*"4 . WJW: www
.dkkiwnt'..edu
02/05/2806 12:05 9545250023 C L ASSOCIATES PAGE 03
expulslon but before February 2000, an not subject to doolpilna or wm*iWding of
prlvWM based solely on VMW membership in the fraternity. However, these members
am reaaansibla WW Wuafly and ooi eeMly for any Sigma Chi remdft I' mbsrahip activities involving Didkirom College eWdw is from andlor
S191na Chi engageb in any;rartutrtting or merr6w*rip activities, each h of W member
will be subject to exPuiston for the 80ANes of the group. Theme rrhaenbem also remain
responsible for they Individual conduct under the Community St Ondarda (610TE: This
s4ftmaht neAacts a change from the message of February 1, 2006 wa h respect to
pnvitegea)
• College's posidan as of Febmwy 1, 2006. Any student of Dickinson Cdlege who
lobs an unreoognbad fraternity or eororiiy will be suspended or e><nW from Dickinson
College. The mernbersthip of an uw%ooW9wd huterntty or sorority ft* engages in
nKx,W {ng or any other "ambersMp activities is subJed to expulsion from the College.
$1g?rhne C#hl •k an ? • • • ? : ? •
? sfR?Mad d1,r girt ?. '^..'_'? '„ •::: r
afforts16 encourage your organization 'to sae oporatton conoistant vvitta fhe of the
College, you have failed to do so. The failure of 5igms Chi to cease activity can only be
sustained by the actions of its members.
The owlMued operation of Sigma Chi Is Inoonslomt with the College's residenUd living-
leaming axpwwm and our expeetattona for sbidents asraodaoed with such aVmIzetions.
OrgandsftAS Comprised solely of students that operate on the Dickinson camper, do so within a
fiNTWNw k that allows the Colege to direct, guide and akmel students through an educatlonaJ
Process on the journey toward dtlzen-Isadarehip.
If you have any questions, please contact ms at 717-245-1555 or rna12i;kjMM aU,
Mlet" S. hlaione
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PETERSON APPLICATION 2006 OMICRON
10.06 Omicron Educadonal Incentive Program (OEIP)
Omicron Chapter Educational Incentive Program
The goal of the Omicron Educational Incentive Program (OEIP) is to promote both
friendship and learning. Instead of only implementing a policy to correct or aid struggling
members, Omicron feels it is important to promote hard work and scholastic accomplishment.
While effort and attention should be given to those who struggle with their studies, attention and
rewards must be forth coming to those brothers who excel in the classroom. Special attention
should be given to those men who take time from their schedule to aid another brother in his
academic pursuits. Therefore, the Omicron Educational Incentive Program rewards those
brothers who excel, work hard and aid others. Besides receiving a monetary reward or
scholarship, these committed brothers receive both internal and external recognition; including
but not limited to: letter home to guardians, acknowledgment at the last chapter meeting,
accomplishment recognition on chapter website, and publication in college paper. OEIP
promotes both classroom and life learning, while strengthening the bonds of brotherhood within
the chapter. The rewards and monetary amounts are as follow:
For those who excel:
Highest GPA- $125
2nd Highest GPA- $100
3`d Highest GPA- $100
Highest Brother-to-Be GPA- $100
2°d Highest Brother-to-Be GPA- $100
'all winners must be above a 3.3
For those who work hard:
Highest GPA Improvement- $125
2na Highest GPA Improvement- $100
3rd Highest GPA Improvement- $100
'requires professor verification
For those who aid others:
Omicron Education Leader Award- $150
•TBD by chapter vote
PETERSON APPLICATION 2006 OAHCRON
10.06 Omicron Educational Incentive Program (OEIP)
Financial Background:
The financial backing for the Omicron Educational Incentive Program (OEIP) is taken
from the chapter's internal scholarship fund. Omicron has two accounts, the Sigma Chi House
Fund at the Sigma Chi Foundation, which currently totals $125,000, and the Lester T. Etter
Scholarship Account, currently holding at slightly over $200,000. The interest from these
accounts is collected every year, and between twelve and fifteen thousand dollars of that interest,
depending on the capital's return, is distributed amongst the brothers of Omicron in the form of
scholarship. OEIP be funded by a portion of the scholarship money generated from the Sigma
Chi House Fund; to be exact, two thousand dollars of this money annually (one thousand dollars
per semester) will constitute the OEIP's monetary rewards.
Program Design:
The Omicron Educational Incentive Program is designed to provide incentive for all
brothers to achieve a level of scholarship at the highest of their ability. In an effort to make the
monetary incentives of this program attainable to as many brothers as possible, a single brother
may garnish no more than one award. As a result, the OEIP will reward nine brothers each
semester. The creation of tiers (i.e. 2"d highest and P highest) gives greater opportunity for
fluctuation, in regards to the incentive recipients. The creation of nine awards serves two
significant purposes. By not rewarding every brother, the OEIP requires a given dedication and
responsibility to one's studies from all brothers. On the other hand, nine awards based on
different aspects and criteria serve as a means to not exclude any member. Regardless of
intelligence, every brother has a reasonable chance to win at least one award; making the awards
attainable to all members heightens the level of achievement of all brothers.
Prorgam Implementation:
The Omicron Educational Incentive Program is run under the direction and oversight of
the Chapter Educator. The Chapter Educator is responsible for obtaining the appropriate funds
and issuing the correct monetary awards. He works closely with the Questor, Chapter Advisor,
Scholarship Chair/Committee and House Corporation Treasurer to ensure proper financial
transactions. The funds for the year must be requested and set aside by the first of October.
PETERSON APPLICATION 2006 OMICRON
10.06 Omicron Educational Incentive Program (OEIP)
Recipients of OEIP rewards are honored at the chapter banquet that concludes each semester.
During this banquet, the checks are distributed in the name of the brother and Dickinson College;
thereby insuring the money is used to aid the brother's educational pursuits.
Case 1:05-cv-02919-DLt-MDG Document 41 Filed 08/11/2006 Page 1 of 39
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----- --------- - _---________.---x
CHI IOTA COLONY OF ALPHA EPSILON PI
FRATERNITY, ALEX KHAYCHUK,
KONSTANTIN NOVODORSKY, VITALY
USHRENTKO, GENNADY AKSELRUD,
ALEKSANDER BARANOV, DAVID BOROWIK, :
ROMAN BURT IAN, DANNY KANE, MIKE
LANTINO, JOSH MALEK, DANNY
MARKOWITZ, EVEN MCKIERNAN, RYAN
RICHMOND, BILLY RUPPERT, BRIAN
THOMSON, JONATHAN TORRES,
STEVE VERBITSKY, and MOSHE ZEITOUNI, ;
Plaintiffs,
-against-
CITY UNIVERSITY OF NEW YORK,
MARLENE SPRINGER, CAROL L. JACKSON,
and CAROL BROWER,
Defendants.
DORA L. IRIZARRY, U.S. District Judge:
MEMORANDUM & 9R
MR
05-CV-2919 (DI.T)(MDG)
This case concerns the constitutional limits of a state university to deny official recognition
to an all-male social fraternity group on the basis that such group violates the university's policy
against gender discrimination. Before the court is plaintiffs' motion for a preliminary injunction and
defendants' cross-motion to dismiss plaintiffs' claims pursuant to Fed. R. Civ. P.12(bx6). The court
considers plaintiffs' claims, under 42 U.S.C. § 1983, that defendants violated their rights to intimate
and expressive association and equal protection. The court also addresses plaintiffs' claim under
Title TX of the Civil Rights Act of 1972. The court has received an amici curiae memorandum
1
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08111/2006 Page 2 of 39
submitted by the North-American Interf eternity Conference and the National Panhellenic
Conference in support ofplaintiffs' claims. The court held oral argument on March 1, 2006, during
which plaintiffs and defendants agreed that a hearing was unnecessary, and the court considers the
record before it sufficient at this time. For the reasons set forth below, the court grants plaintiffs'
motion for a preliminary injunction. Defendants' motion to dismiss is denied with respect to
plaintiffs' claims of intimate and expressive association but granted with respect to plaintiffs' equal
protection and Title IX claims. The claims against Marlene Springer and Carol L. Jackson in their
.individual capacities, for monetary relief, are dismissed on grounds of qualified immunity.
1. Facts
The individual plaintiffs in this action an male students at the College of Staten Island
("CSI"), a senior college of defendant City University of New York ("CUNY'I,' who are members
of the Chi Iota Colony, a group in the process of becoming a chapter of the international college
social fraternity Alpha Epsilon Pi ("AEPi"). The factual background presented herein draws
primarily from deposition testimony and declarations from Alex Khaychuk ("Mr. Khayehuk"), one
of the named plaintiffs and President of Chi Iota Colony from late spring 2004 to fall 2005.
Plaintiff Chi Iota Colony of AEPi (hereinafter the "Fraternity') was formed around October
2002. Currently, there are eighteen members in the Fraternity, and plaintiffs estimate that the
Fraternity is unlikely to exceed fifty members, though there is no set membership limit. (Khaychuk
Decl. IM 14, 23-24.) CSI has an undergraduate student population of around 11,100, approximately
' CUNY is a public university established under the New York Education Law.
2
E,
;i
Case 1:05-ev-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 3 of 39
4500 of which are males? (See Galvez Decl. Ex. A.)
Plaintiffs state that the Fraternity's purpose and membership requirements have been
established to be consistent with those of AEPi. (Khaychuk Decl.119.) AEPL which describes
itself as "the Jewish Fraternity of North America" but is "non-discriminatory and open to all who
are willing to espouse its purpose and values," was founded in 1913 "to provide opportunities for
the Jewish college man seeking the best possible college and fraternity experience." The Mission
Statement of Alpha Epsilon Pi, http://www.aepi.o%dffom2ation/mission.html (last visited August
11, 2006). AEPi's basic purpose is enabling "a Jewish man to be able to join a Jewish organization
whose purpose is not specifically religious, but rather social and cultural in nature." (1d.) AEPi
associates itself with Jewish organizations such as the Foundation for Jewish Campus
Life/International HiIlel and the Israel on Campus Coalition. AEPi Partnerships,
http://www.aepi.org/information/psrttner.html (last visited August 11, 2006). AEPi has also
partnered with the organization "Taglit-birthright israel" to send members on cost-free trips to Israel.
(1d.)
The Supreme Constitution of AEPi provides that membership in a particular chapter is
3
conferred to "any male student attending the college or university where such chapter is located."
(Am. Compl. Ex. 1, art. 11 § I(axl).Y AEPi's Constitution states as the group's purpose
= These estimates were provided for fall 2004. Plaintiffs allege in their complaint that the
CSI population is 12,500, but this estimate includes graduate students. (See Galvez Decl. Ex. A.)
In full, this subsection states:
A chapter -such membership may be conferred by secret individual ballot of the
members of the chapter, upon any male student attending the college or university
where such chapter is located, who is in good standing at and pursuing a course
leading to a degree from the college or university, believes in God, has been
E
3
Case 1:05-ov-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 4 of 39
... to promote and encourage, among its members:
Personal perfection, a reverence for God and an honorable life devoted to the ideal
of service to all mankind; lasting friendships and the attainment of nobility of action
and better understanding among all faiths;
The pursuits of those benefits which derive from vigorous participation in university
and college activities and from pleasant application to literary, cultural and general
social'undertaidngs; and
The unbiased judgment of our fellows, not by their rank nor worldly goods, but by
their deeds and their worth as men.
(Id. pmbl.) The Fraternity's bylaws present the following purpose:
To foster and promote brotherly love, to inaugurate a spirit of cooperation and
helpfulness, to create a better understanding among our brothers, [and] to encourage
vigorous participation in university, college and general activities in our community,
to the mutual advantage of all concerned ....
(Id. Ex. 2 pmbl.) Plaintiffs further describe the Fraternity's purpose as achieving a "lifelong
interpersonal bond termed brotherhood," which "results in deep attachments and commitments to
the other members of the Fraternity among whom is shared a community of thoughts, experiences,
previously pledged by the chapter and who has complied with all the requirements '
of the chapter and Supreme Board of Governors, each chapter determining for itself
whether such election shall be by a unanimous vote of the members of the chapter or
with negatives [sic] votes not exceeding 10% of its members; provided, however,
that any chapter shall have the discretion to require up to three (3) negative votes for
such an election; provided, however, the Supreme Board of Governors shall be
empowered to waive and/or suspend such requirements to comply with the rules,
regulations and declarations of the administrators of the college or university where
any such chapter or colony is located or to be located [emphasis added.]
Defendants' counsel asked Mr. Khaychuk at his deposition whether the last portion of this provision
would mean that plaintiffs could request AEPi to waive and/or suspend the male requirement in
order to comply with CSI's rules. Mr. Khaychuk replied that he did not believe that this requirement
was waivable. (Khaychuk Dep. at 83-84.) There has been no comment directly provided by AEPi.
Nevertheless, this matter of contract interpretation is not addressed herein, as it is outside the scope
of determining, for the instant motion, whether a preliminary injunction is wan-anted on the theory
that CSI's policies violate plaintiffs' constitutional rights.
4
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 5 of 39
beliefs and distinctly personal aspects of their lives." (Khaychuk Decl. IM32 33.) Plaintiffs explain
that "[t]he single-sex, all-male nature of the Fraternity is essential to achieving and maintaining the
congeniality, cohesion and stability that enable it to function as a surrogate familyand to mat social,
emotional and cultural needs of its members. Furthermore, non-platonic, i. e., romantic relationships
between members and the inevitable jealousies and other conflicts would pose a grave threat to the
group's brotherhood, thus, maintaining the Fraternity's brotherhood is best achieved by maintaining
an all-male membership." (Id. ¶M 34-35.)
Plaintiffs acknowledge that there have been at least two bisexual members in the Fraternity,
4
though, to their knowledge, there have never been any homosexual members. Mr. Khaychuk
explains that potential members are asked about their sexual orientation, partly to gather facts about
the individual and partly because it may affect the individual's fitness to become a member, though
sexual orientation may or may not affect the individual's chances at receiving a bid. It is unclear '•
when the two members may have indicated to others that they were bisexual. (Khaychuk Dep. at
87-97.) Mr. Khaychuk explains that, had he )mown that there were bisexual members in the
Fraternity, it "might have made [him] uncomfortable" but that he did not know whether it would
have affected his choice to join the Fraternity. (Id. at 108.) Mr. IChaychuk was asked whether
admitting a lesbian would be acceptable to the Fraternity, as the chance of romantic relationships or
jealousies would be eliminated, presumably to which he replied that "[h]aving a female in the
fraternity is an issue itself' and that a lesbian is "still a female." (Id. at 103-04.) Mr. K Uyehuk
further explains that a man "could be close to a female as friends, but in a fraternity it's a different:
kind ofbond." (Id. at 138.) Mr. Khaychuk testified that there are certain matters he might share with
a fellow member, or "brother," in the Fraternity that he would not share with his family and vice }
5
i-
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 6 of 39
versa (Id. at 145.)
When asked whether the Fraternity expresses any kind of public message, Mr. Khaychuk
replied that the group's public message is that it is a "predominantly Jewish male fraternity."
(Khaychuk Dep. at 120.) Mr. Khaychuk explains that, in private meetings, the Fraternity members
"are not extremely religious, but [they] do talk about things that (they] contribute to the community,
an expression of Judaism." (Id. at 124.) Members sometimes wear t-shirts identifying themselves
as members of AEPi. The Fraternity receives assistance from the A.EPi national organization, for
example concerning member recruitment and running the Fraternity, and sometimes receives visits
from an AEPi national advisor. (Id. at 152.)
In accordance with the mission and purposes of the Fraternity, in evaluating prospective
members, the Fraternity considers congeniality, social compatibility, and the man's level of interest
in joining the Fraternity, potential for loyalty and commitment to AEPi and its purposes, existing
relationships with members, character, and potential for affection, admiration, cooperation, and
respect among members. (Khaychuk Decl. 1 38.) Neither the Fraternity nor AEPi requires members
to be Jewish, and the Fraternity does have non-Jewish members, but Mr. Khaychuk, remarks, "We
explain to the rushes that we're a Jewish fraternity, and what we stand for. If they're okay with that,
then obviously they accept that we're a Jewish fraternity, and then we just look for the qualities that
they would better us as a fraternity." (Khaychuk Dep. at 69.) However, Mr. Khaychuk also
comments that extending bids to non-Jewish potential members has been "an issue with some
brothers" in the Fraternity. (Id. at 75-76.) Membership is for`life, unless a member is expelled for
disciplinary reasons. No man who is a member of another college social fraternity may become a
member of AEPi.
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Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 7 of 39
Individuals become members of the Fraternity through processes known as "rush" and
"pledging." Plaintiffs define "rush" as the "process by which a fraternity group communicates with
prospective members and recruits and selects new members and during which prospective members
evaluate the group and their own interest in joining." (Khaychuk Decl.127.) Plaintiffs define
"pledging" as the "period of transition between (a) the acceptance of an invitation to membership
in a fraternity chapter/colony and (b) the conferral of full membership." (Id. 128.) Pledging, which
occurs twice per year, lasts one to five weeks. During this time, transitional members, or "pledges,"
get to know one another and the members and, through weekly meetings conducted by a "pledge
master," are taught about and tested on AEPi's history, purposes, and values. (See Khaychuk Dep.
at 35-37, 111-14, 133.) AEPi's Constitution provides:
The course of pledge training may include duties about the house and other
duties for the chapter, but shall not include any personal service for members of the
chapter or visiting alumni. Extra pledge duties may be imposed as discipline, but no j.
pledge shall be subject to corporal punishment of any kind. Practices which have `
been known as "Hell Week" and any similar practices are strictly forbidden..
No pledge shall be subject to paddling or any other form of corporal
punishment or be placed in physical peril. Undignified methods, either private or
public, such as quests, treasure hunts and road trips are specifically prohibited.
(Am. Compl. Ex. 1, art. X11 §§ 1-2.)
Plaintiffs explain that selectivity in membership is achieved through several steps involving
mutual decisions by the Fraternity and potential members. During rush, members will extend an
invitation to attend a rush event to around ten percent of men they meet on CSI's campus, and
around one third of such men have become acquainted with members through attending Hillel or
Jewish Awareness Movement activities. Most, but not all, of such men are invited to attend
additional rush events, and not all invited men return. During the rush process, each prospective
7
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Case 1:05-ev-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 8 of 39
member goes through a structured interview during which he is asked about his intmest in joining
the Fraternity, family and personal life, academic and career plans, religion and attitude towards
religion, views on social issues, and what he seeks from membership in the Fraternity. The majority
of men who attend repeated rush events are asked to join the Fraternity, and the final decision
offering each bid is made by a member of the Fraternity's executive committee after discussion with
all members, ensuring that serious dissent is not expressed by more than one member. As an
example, around eight to twelve men per semester might be asked to join the Fraternity and start the
pledging process! Of these, around six to ten might decide to go through pledging, and around five
to six might be initiated as members. Sometimes, a pledge may drop out or, .occasionally, the
Fraternity "depledges" a man, i.e., halts the membership process with him. (Khaychuk Reply Decl.
719-15.)
As a group, plaintiffs participate in a variety of activities, both with and without non-
members, and ranging from formal to informal. The Fraternity excludes non-members from
"meetings at which it discusses whether to offer membership to a man; meetings at which the
ceremony commencing pledgeship is performed; meetings at which the ceremony initiating a man
into full membership is performed; meetings at which it considers terminating a man's membership;
and from certain other business meetings" (Khayebuk Decl. 1 40.) The initiation ceremony
includes rituals about which onlYmembers are allowed to know. Khaychuk D
( ep. at 39.) On a given
week, around half of the Fraternity members, including those who are not Jewish, attend a weekly
meeting with a Rabbi organized by the Jewish Awareness Movement at CSI. Once, during pledging,
4 Mr. Khaychuk testified at his deposition that having fifty pledges was a "goal[]."
(Khaychuk Dep. at 158.)
8
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Case 1:05-ev-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 9 of 39
pledges built a sukkah,s which Mr. Khaychuk testified was part of the Fraternity's expression of its
Jewish message, with another Jewish campus group. Another time, the Fraternity invited the Rabbi
from the Jewish Awareness Movement to speak about Israel at one of the Fraternity's meetings.
Plaintiffs occasionally have social parties to which they invite non-members. These parties are
publicized by word of mouth and flyers. (Id. at 113, 120-21, 124-25, 127.) Plaintiffs further
describe the nature of their activities as follows:
While social events to which we invite non-members are certainly a part of our
activities, since one purpose of a social fraternity is to develop a variety of social
skills, they are not a major part of our activities, occurring perhaps once or twice a
month. In contrast, we have our colony business meetings weekly and less formal
gatherings of the members (brothers) on at least a weekly basis and often more than
once a week. In addition, through much of the semester, there are activities involving
the teaching of, and getting to know, the pledges on a weekly basis or more
frequently, and a community service event an average of one per semester. As
should be apparent, social events to which we invite non-members are a minority of
our activities.
(Khaychuk Reply Decl. 1 8.)
t
On or about March 3, 2004, the Fraternity applied to be chartered and officially recognized
by CSL By memorandum dated March 29, 2004, Carol Brower, Director of the Office of Student
Life at CSI, denied the Fraternity's application because it did not comply with CSI policy:
"Membership in a chartered club must be ?
P i open to all students. Because your constitution appears
to exclude females, it contravenes the College's non-discrimination policy.... In addition, I note
that your proposed constitution provides for the practices of rushing and pledging. College policy
s A sukkah is a "a booth or shelter with a roof of branches and leaves erected near a home
or in or near a synagogue and used esp. for meals and for temporary residence during the celebration
of the Sukkoth festival," which is "a Jewish religious festival of thanksgiving celebrated orig. as an
autumn harvest festival that is commemorative of the temporary shelters of the Jews during their
wandering in the wilderness." WEBSTU's THM NBw INT'L DICTIONARY 2287 (2002).
i
I=:
9 ;r
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 06/11/2006 Page 10 of 39
... prohibits rushing and pledging." (Am. Compl. Ex. 6.) CSI delineates the following policies in
its "Club Chartering Packet":
In order for an organization to be officially recognized at the College of Staten Island,
membership and participation in it must be available to all eligible students of the
College. In addition, in order to be recognized, each organization must agree not to
discriminate on the basis of age, alienage or citizenship, color, gender, differing
ability, national or ethnic origin, race, religion, sexual orientation, veteran or marital
status, or social class.
Furthermore, the practices commonly referred to as pledging and rushing are not
permitted.
(Id. Ex. 5 at 6 (emphasis added).)
The benefits and privileges that CSI confers to recognized student organizations include the
use of CSI's facilities, services, bulletin boards, and centralized mailbox; the opportunity to apply
for special funding through the CSI Student Government or to solicit contributions outside of CSI;
the right to use the CSI name in conjunction with the organization's name; the inclusion of events
in monthly calendars and the ability to arrange news coverage through the Office of Student Life; 7
the use of workspace in the Campus Center or meeting space in CSI's academic buildings; and
eligibility for insurance through the CSI Association. (Am. Compl. Ex. 5 at 3.) Plaintiffs explain
that denial of official recognition has precluded them from setting up tables at new student f;
A?
orientations, receiving funds from CSI, and being able to hang banners or chalk announcements on
campus. Plaintiffs claim that they were specifically prohibited from handing out flyers to students
on campus. Plaintiffs explain that having to hold meetings off-campus has caused difficulty for
students who depend on public transportation. (Khaychuk Reply Decl. In 3-5. )6
lk
s Mr. Khaychuk explained that recognition is likely necessary to become an official chapter
of AEPi, though he was not completely sure and the court has no further information. (Khaychuk `
Dep. at 153.)
10
i.
}
Case 1:05-ev-02919-DLI-MDG Document 41 Filed 08111/2006 Page 11 of 39
More than a year after the denial of the club chartering application, plaintiffs filed the instant
action on June 17, 2005, claiming, under 42 U.S.C. § 1983, that the defendants have violated their
rights to intimate and expressive association and equal protection. Plaintiffs move for a preliminary
injunction on these claims, "requiring [d]efendants.. , to recognize the Fraternity on behalf of CSI,
to grant the Fraternity a charter and all the rights and privileges accorded recognized/chartered
student organizations at CSI, and to refrain from discriminating against [p]laintiffs on the basis of
their membership practices or on any other unlawful basis." (Am. Compl. 1142.) Plaintiffs also
seek monetary and injunctive relieve under 42 U.S.C. § 1983 against CSI President Marlene Springer
("Springeel and Carol L. Jackson ("Jackson'), Vice President for Student Affairs at CSI, in their ;
individual capacities, for alleged violations of plaintiffs' constitutional rights. Plaintiffs' last
remaining claim' is that defendants violated Title IX of the Civil Rights Act of 1972, 20 U.S.C. §
1681(a). Defendants cross-move to dismiss plaintiffs' claims under Fed. R. Civ. P. 12(bx6).
H. Motion to Dismiss Standard
In analyzing the plaintiffs' motion for a preliminary injunction below, the court also
F'
considers defendants' cross-motion to dismiss. ;.
:a
A motion to dismiss under Fed. R. Civ. P. 12(b)(6), for "failure to state a claim upon which
relief can be granted," must be denied "unless it appears beyond doubt that the plaintiff can prove
no set of facts in supportof his claim which would entitle him to relief." Conley v. Gibson, 355 U.S.
41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). The court must accept as true all well-pleaded factual
By Memorandum and Order dated December 22, 2005, the court dismissed plaintiffs' state
law claims that defendants violated the New York State Constitution, Public Accommodation Act,
and Anti-Discrimination Act.
11 `
Case 1:05-cur-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 12 of 39
allegations and draw all reasonable inferences in the plaintiff's favor. E.g., Dangler v. New York
City Off Track Betting Corp., 193 F.3d 130,138 (2d Cir. 1999).
III. PreMninary Injunction Standard
A party seeking a preliminary injunction must show "(1) that it will be irreparably harmed
if an injunction is not granted, and (2) either (a) a likelihood of success on the merits or (b)
sufficiently serious questions going to the merits to make them a fair ground for litigation, and a
balance of the hardships tipping decidedly in its favor." Bronx Household of Faith v Bd of Educ.
of the City of New York 331 F.3d 342, 348-49 (2d Cir. 2003). Where, as in the present case, a
mandatory injunction is sought, i.e., one that seeks to alter rather than maintain the status quo, a
heightened showing of "clear" or "substantial" likelihood of success on the merits is required' E.g.,
id. at 349; Jolly v Coughlin, 76 F.3d 468, 473 (2d Cir. 1996).
`Plaintiffs do not dispute that the injunction sought is a mandatory injunction. To the extent
plaintiffs argue that an exception to the heightened standard exists for "a constitutionally based
preliminary injunction against an educational entity's policy that affects the group's ability to
operate" (Pls.' Mem, at 14}-based on Deeper Life Christian Fellowship, Inc. v. Bd. ofEduc. ofthe
City ofNew York, 852 F.2d 676 (2d Cir.1988) and Hsu v Roslyn Union Free Sch. Dist., 85 F.3d 839
(2d Cir.1996)-the court finds nothing in Deeper Life or Hsu announcing such a rule or indicating
that the heightened standard should not apply in the instant case.
12
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 13 of 39
Irreparable Harm
Plaintiffs argue that irreparable harm should be presumed because they have alleged
violations oftheir constitutional rights. The Second Circuithas made clear that there is no automatic
presumption, distinguishing between whether "the challenged goverment action directly limit[s]"
i.
or "only potentially affect[s]" the plaintiffs constitutional rights. See Bronx Household, 331 F.3d
at 350. While irreparable harm may be presumed in the former situation, it is not in the latter
situation because of the lack of a causal link. The Second Circuit emphasizes that "a party must
articulate a 'specific present objective harm or a threat of specific future harm. Id. (quoting Laird
v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972)).
1
Here, as in Bronx Household, there is a sufficient causal link because the violation of First }
Amendment rights' alleged by plaintiffs "results directly" from defendants' policy denying official
recognition to organizations that discriminate on the basis of gender. See 331 RM at 350.
Irreparable harm may thus be presumed. Defendants' argument that constitutional harm is lacking
because the Fraternity has already existed independent of official recognition has been rejected by
the Supreme Court. See Healy v James, 408 U.S.169,183, 92 S. Ct. 2338,33 L. Ed. 2d 266 (1972) f
("the group's possible ability to exist outside the campus community does not ameliorate
significantly the disabilities imposed by the President's action [in denying official campus
recognition]"). With irreparable harm presumed, the court next addresses whether there is a "clear'
or "substantial" likelihood of success on the merits.
' The court does not address irreparable harm with regard to plaintiffs' equal protection and
Title IX claims, as these claims are dismissed under Fed. R. Civ. P. 12(bx6), Infra.
13
r;
Case 1:05-cv-02919-DLI-MDG Document 41 Flled 08/11/2006 Page 14 0 39
IV. Freedom of Associadon
"While the freedom of association is not explicitly set out in the [First] Amendment, it has
long been held to be implicit in the freedoms of speech, assembly, and petition." Healy, 408 U.S.
at 182. The Supreme Court distinguishes between "freedom of intimate association," which
concerns protecting "choices to enter into and maintain certain intimate human relationships ...
against undue intrusion by the State," and "freedom of expressive association," which involves the
"right to associate for the purpose of engaging in those activities protected by the First
Amendment-speech, assembly, petition for the redress of grievances, and the exercise of religion."
Roberts v. United States Jaycees, 468 U.S. 609, 617-18,104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984).
Plaintiffs have asserted claims under both of these associational rights.'o "[W]hen the State
interferes with individuals' selection of those with whom they wish to join in a common endeavor,
freedom of association in both of its forms may be implicated." Id. at 618; see also Bd. ofDirectors i
of Rotary Int'l v Rotary Club of Duarte, 481 U.S. 537, 544, 107 S. Ct. 1940, 95 L. Ed. 2d 474
(1987) ("Iu many cases, government interference with one form of protected association will also
burden the other form of association.').
If the court finds that a
group warrants constitutional protection as an intimate or expressive
association, the court must then determine whether the group is being subjected to "unjustified F;
government interference." See Louisiana Debating & Literary Assn v. City of New Orleans, 42
F.3d 1483,1498 (5th Cir.1995) (quoting Duarte, 481 U.S. at 544). Intrusion on a group's freedom
10 Though plaintiffs also list "freedom of speech" in their Amended Complaint, they do not
specifically address "speech" other than through arguments concerning the rights to intimate and
expressive association.
14
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Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08111/2006 Page 15 of 39
of association is subject to strict scrutiny, and "[i]nfringements.. , may be justified by regulations
adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be
achieved through means significantly less restrictive of associational freedoms." Roberts, 468 U.S.
at 623; see also Louisiana Debating, 42 F.3d at 1498.
Intimate Association
The right to intimate association stems from the concept ofpersonal liberty and "reflects the
realization that individuals draw much of their emotional enrichment from close ties with others."
Roberts, 468 U.S. at 619. Courts have most readily afforded the right to intimate association to
relationships centered around family, marriage, the raising of children, and the cohabitation among
relatives. See Id. These relationships are
distinguished by such attributes as relative smallness, it high degree of selectivity in
decisions to begin and maintain the affiliation, and seclusion from others in critical
aspects of the relationship. As a general matter, only relationships with these sorts
of qualities are likely to reflect the considerations that have led to an understanding
of freedom of association as an intridsic element of personal liberty. Conversely, an
association lacking these qualities-.such as a large business enterpriso-seems
remote from the concerns giving rise to this constitutional protection. i`
i.
Id. at 620. Given the grey area between these polar examples given by the Court, each relationship
must be scrutinized to determine where its "objective characteristics locate it on a spectrum from the
most intimate to the most attenuated of personal attachments" Id.; see also Duarte, 481 U. S. at 545
("We have not attempted to mark the precise boundaries of this type of constitutional protection. .
.. Of course, we have not held that constitutional protection is restricted to relationships among
family members.'. Factors to be considered "include size, purpose, policies, selectivity,
congeniality, and other characteristics that in a particular case may be pertinent." Roberts, 468 U.S.
15
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 16 of 39
at 620.
Under consideration in Roberts was a challenge by the United States Jaycees ("Jaycees') to
Minnesota's Human Rights Act, which prohibited discrimination based on gender in places of public
i
accommodation." At the time, regular membership in Jaycees was limited to young men between 4
ages 18 and 35. Jaycees claimed that application of the Minnesota Human Rights Act violated its
fivedom of association. The Court held that Jaycees was not an intimate association entitled to
constitutional protection, noting that local chapters of Jaycees were large (400 members, for
example) and unselective because "new members [were] routinely recruited and admitted with no
inquiry into their backgrounds." Roberts, 468 U.S. at 621. The Court found Jaycees chapters so
F
unselective that "a local officer testified that he could recall no instance in which an applicant had
been denied membership on any basis other than age or sex." Id. Finally, the Court remarked that
"numerous non-members," including women, participated regularly in "a substantial portion of
activities central to the decision of many members to associate with one another, including many of
the organization's various community programs, awards ceremonies, and recruitment meetings."
r
Id. Thus, the Court concluded, "much of the activity central to the formation and maintenance of
the association involves the participation of strangers to that relationship. Accordingly, we conclude
that the Jaycees chapters lack the distinctive characteristics that might afford constitutional
protection to the decision of its members to exclude women." Id.
In another key decision, Duarte, supra, the Court held that California's Unruh Civil Rights
The Court found that Jaycees was a "place of public accommodation" within the meaning
of the Act, which the Court noted was "an example of public accommodations laws that were
adopted by some States beginning a decade before enactment of their federal counterpart, the Civil
Rights Act of 1875." Roberts, 468 U.S. at 624.
16 !
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 17 of 39
Act did not violate local Rotary Clubs' freedom of association by requiring them to admit women,
contrary to international club policy. The Court found that local Rotary Clubs were not intimate
associations based on findings that (1) despite varied size from 20 to 900, there was "no upper limit"
on membership, (2) clubs focused on "inclusive, not exclusive" membership policies, since clubs
were instructed to "keep a flow of [membership] prospects coming" in order for there "to be a true
cross section of the business and professional life of the community," (3) although membership was
granted by committees, with a final decision by a club's board of directors, clubs were instructed to
grant membership to "all fully qualified prospective members within [their] territor[ies]" and
"maintain a membership growth pattern," (4) many of the clubs' "central activities [were] carried
on in the presence of strangers," since members of any other Rotary Club were to be admitted by the
local club and members were encouraged to invite business associates and competitors to meetings,
and (5) local clubs often sought news coverage or joint meetings or activities with other
organizations. Duarte, 481 U.S. at 546-47. The Court found that "[i]n sum, Rotary Clubs, rather ,
than carrying on their activities in an atmosphere of privacy, seek to keep their windows and doors
open to the whole world." Id. at 547 (internal quotation marks and citation omitted).
In contrast, in Louisiana Debating, supra, the Fifth Circuit found that four private clubs in
New Orleans were intimate associations. The clubs had a "purely social purpose" and selected
members based on "character, relationships and acquaintances, congeniality, and compatibility." 42
F.3d at 1496. In granting intimate association status, the Fifth Circuit noted that (1) the clubs'
admission processes were especially restrictive, since only existing members could propose new
members, admission decisions were subject to vote by the general membership, and only three to five
objections would preclude membership, (2) non-members were excluded from the clubs' facilities,
17
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/1112006 Page 18 of 39
which were not identified to the public by any signs, except for extremely limited guest policies,'
and (3) each club had upper limits on membership, for both residents and non-residents, with the
Boston Club having the highest limits of 600 residents and 400 non-residents.
Plaintiffs' organization is equipoised between two extremes, as it is neither as unselective
as the groups in Roberts or Duarte nor as closed to the public as the clubs in Louisiana Debating.
The only case addressing whether a fraternity (or sorority) qualifies as an intimate association is Pi
Lambda Phi Fraternity, Inc. v. Unix ofPittsburgh, 229 F.3d 435 (3d Cir. 2000). in this case, the
University of Pittsburgh took away the fraternity's status as a recognized student organization when
four members were arrested for possession of controlled substances, including heroin, cocaine,
opium, and Rohypnol. The Third Circuit held that the fraternity did not warrant classification as an
intimate association, justifying its decision as follows:
[A) range of 20 to 80 members would put the Chapter within the same size range as
the local Rotary Clubs that the Court held did not engage in intimate association in
Duarte .... Furthermore, the Chapter actively recruits new members from the
University population at large and it is not particularly selective in whom it admits.
The international organization of Pi Lambda Phi strongly encourages its chapters to
12 The Fifth Circuit noted the following:
Louisiana Debating prohibits its members from bringing or inviting any male guests,
at any time and under any circumstances. Female guests are permitted rarely, but
usually, they are the members' wives. At the Boston and Stratford Clubs, male
residents of the City are strictly prohibited from attending as guests; women and
children residents maybe accompanied by a member, but on extraordinary occasions;
the inviting of male nonresidents is strictly limited according to the time, frequency,
and occasion of the visit. The Pickwick Club permits nonresident males to attend as
guests during the noonday meals, provided the guest is a friend or close relative of
the member and has some basis for a social acquaintance with other members;
women and resident males are permitted, but only at limited times and with the
approval of the club's Board of Governors.
Louisiana Debating, 42 F.3d at 1496-97.
18
Case 1:05-cur-02919-DLI-MDG Document 41 Filed OS/11/2006 Page 19 of 39
recruit new members aggressively so as to continue the growth of the organization.
The Chapter also invites members of the public into its house for social activities and
participates in many public University events. All of these elements--the Chapter' a
size, lack of selectivity, and lack of seclusion in its activities-support our conclusion
that the Chapter lacks the essential characteristics of constitutionally protected
intimate association.
Pi Lambda Phi, 229 F.3d at 442.
However, the Third Circuit's decision does not give the court clear direction, particularly
since the Supreme Court has not established a bright line test when considering a group's size. In
determining whether a group is intimate, the court should look at how small it is numerically in
comparison to the potential pool of applicants. Indeed, "a club in a large city, such as New York,
`with over 400 members may still be relatively intimate in nature, so that a constitutional right to
control membership takes precedence' over the city's attempt to ban discrimination within the club."
Louisiana Debating, 42 F.3d at 1497 n.28 (quoting New York State Club Ass'n, Inc. v City ofNew
York, 487 U.S.1,19,108 S. Ct. 2225,101 L. Ed. 2d 1 (1988) (O'Connor, J., concurring)); see also
Roberts, 468 U.S. at 620 ("We need not mark the potentially significant points on this terrain with
any precision. We note only (the relevant factors, including size] .... )." Furthermore, the Third
Circuit did not explain why it ascribed a "lack of selectivity" to the fraternity.
These factors make the present case distinguishable from PI Lambda Phi and tip the scale
towards "clear" or "substantial" likelihood of success on the merits on a finding that the Fraternity
qualifies as an intimate association. Viewing all the relevant factors, the Fraternity has met its
burden for a preliminary injunction on this question.
With eighteen current members and a potential membership of fifty, out of an approximate
CSI undergraduate student population of 11,100 and male population of4500, the Fraternity's size
19
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 20 of 39
is relatively small. Though plaintiffs admit that the Fraternity technically has no set membership
limit, a group's failure to choose a numerical maximum, by itself, does not weigh against intimate
association status. Indeed, when the Court noted in Duarte that the Rotary Clubs had no upper limit,
the focus was more on a lack of selectivity than on the need for a numerical cutoff See 481 U.S. at
546-47.
Plaintiffs noted at oral argument that fraternities and sororities are generally portrayed as and
criticized for being exclusive and selective. While the court in Pi Lambda Phi did not describe why
it did not find the fraternity selective, in the case at bar, plaintiffs have provided several details
regarding the Fraternity's selectivity in membership. Similar to the clubs in Louisiana Debating,
only members of the Fraternity may make decisions regarding new members. It is primarily
members who invite individuals to attend rush events, and such invitations are only extended to
approximately ten percent of the men a given member meets. From rush onwards, the pool is
significantly whittled down to a smaller group of pledges and final members. Unlike the Jaycees in
Roberts, where gender and age requirements seemed to be the only factor ever precluding
membership, the Fraternity screens potential members through a formal process with an emphasis
on social and philosophical compatibility with existing members. See 468 U.S. at 621. The
Fraternity does not have the "inclusive, not exclusive" membership policies that contributed to the
finding that the Rotary Clubs were not entitled to protection as intimate associations. See Duarte,
481 U.S. at 546. Also, like the Louisiana Debating clubs, membership decisions in the Fraternity
are considered by the general membership. Mr. Khaychuk explained that serious dissent from even
one member of the Fraternity could be grounds for denial of membership; such an obstacle to
membership reflects at least a similar level of selectivity as exercised by the clubs in Louisiana
20
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Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 21 of 39
Debating, where three to five objections would preclude membership. Notwithstanding the fact that
the clubs in Louisiana Debating were larger, and hence three to five objections would be a small
percentage, the fact that serious dissent by one member of the Fraternity could preclude membership
is evidence of the Fraternity's functioning as a close-knit, selective group.
With regard to seclusion in activities central to the group's purposes, plaintiffs explain that
social events to which non-members are invited are not the focus of the Fraternity's activities. The
Fraternity excludes non-members from initiation and pledgeship ceremonies, which include secret
rituals, and weekly business meetings." One or more ofthese activities occur every week in contrast
to the social parties, which occur around twice per month. The weekly members-only meetings and
shared rituals are activities central to the Fraternity's purposes of brotherhood, congeniality,
functioning as a surrogate family, and sharing a community of thoughts, experiences, and beliefs.
The Fraternity contrasts with the Jaycees in Roberts and the Rotary Clubs in Duarte, where the
clubs' activities were rife with non-member participation, though admittedly the Fraternity is not as
secluded in its activities as the clubs in Louisiana Debating.
The court in Pi Lambda Phi did not mention or assess the fraternity's purposes in finding that
it was not an intimate association. Though the Court in Roberts included "congeniality" as a factor
that could bear on intimate association status, see 468 U.S. at 620, subsequent Supreme Court
decisions have not explored the contours of this factor." The Fraternity's central purposes are not
" The record is somewhat unclear . whether non-members are excluded from all of the
business meetings. (Compare Khaychuk Decl. 140 with Khaychuk Reply Decl.18.)
14 In City ofDallas V. Stanglin, the Court considered the constitutionality of a Dallas, Texas
ordinance that limited admission to certain dance halls to individuals between ages 14 and 18. After
finding that a group of dance hall patrons, consisting of around 1000 strangers on a particular night,
did not qualify as an intimate association, the Court, in discussing whether such a group would
21
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Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08111/2006 Page 22 of 39
unlike those of the clubs in Louisiana Debating, which were described as follows:
The Clubs' members share common social interests and backgrounds; often, the
relationships predate membership in the Clubs through either family, religious
activity, or other social groups. The criteria the Clubs use in selecting members
include character, relationships and acquaintances, congeniality, and compatibility.
Thus, a close nexus exists between the Clubs' purposes and membership criteria.
42 F.3d at 1496. Defendants suggest that the Fraternity's participation in community and social
events and its identification with Jewish culture should remove it from intimate association status.
However, as has been described above, like in Louisiana Debating, there is a "nexus" between the
Fraternity's central purposes-including brotherhood and congeniality--and its "membership
criteria." See id.
Under the totality of circumstances, considering the Fraternity's relatively small size,`
t
exclusivity in membership, and seclusion in activities central to the group's purposes, plaintiffs have
shown "clear" or "substantial" likelihood of success on the merits that the Fraternity qualifies as an
intimate association. F
The court next considers whether the state action by CSI survives strict scrutiny. The parties'
arguments both in their memoranda of law and at oral argument focused on CSI's non-discrimination
policy as applied to the Fraternity. With regard to CSI's blanket prohibition against "rushing" and
"Pledging," nowhere in their papers do defendants set forth any justification or purpose for this
qualify as an expressive association, noted, "we do not think the Constitution recognizes a
generalized right of `social association' that includes chance encounters in dance halls." 490 U.S.
19, 25, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989). The Second Circuit imported this language in
addressing the right to intimate association in Sanitation & Recycling Indus., g Inc. v City of New
York, 107 F.3d 985, 996 (2d Cir.1997). However, it appears that, given the listing of `congeniality"
as a factor in Roberts, and the reference in Stanglin relating to freedom of expressive association,
social groups are not necessarily excluded from being considered intimate associations. See E
Louisiana Debating, 42 F.3d at 1497-98 (purely social clubs found to be intimate associations).
22
l:
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 23 of 39
prohibition. Based on plaintiffs' definitions of "rushing" and "pledging," it appears that these terms
are simply names given to the Fraternity's member recruitment phases; thus, rushing and pledging
are activities that are inseparable from the Fraternity's existence. CSI does not have a compelling
interest in preventing student groups from forming. The non-discrimination policy, rather than the
prohibition against rushing and pledging, is the critical state action at stake in this case that shall be
evaluated.
There is undoubtedly a compelling interest in eradicating discrimination based on gender,
as reflected in laws such as Title VII and the public accommodations laws that the Court has
emphasized serve compelling interests in decisions such as Roberts and Duarte. See, e.g., Duarte,
481 U.S. at 549 ("public accommodations laws 'plainly serv[e] compelling state interests of the
highest order") (quoting Roberts, 468 U.S. at 624). CSI's policy that "in order to be recognized,
each organization must agree not to disc&3dnate on the basis of ... gender" articulates a compelling
interest similar to gender antidiscrimination laws. A state higher educational institution has a
compelling interest in ensuring males and females equal access to student groups.
However, fraternities and sororities have long-standing traditions of single-sex membership
at educational institutions throughout the United States. Fraternities and sororities, with their focus
on promoting brotherhood and sisterhood, are distinguishable from other student groups centered
on non-gender-based interests such as politics, the environment, music, or languages, where the state
institution's compelling interest in eliminating gender discrimination would clearly override such
a group's interest in limiting membership to one gender. There is no law deeming single-sex
organizations per se unconstitutional or against national policy. On the contrary, in support of their
preservation, fraternities, sororities, and certain other single-sex organizations have been specifically
23
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Case 1:05-cv-02919-DLI-MDG Document4l Filed 08!11/2006 Page 24 of 39
excluded from federal gender antidiscrimination legislation. For example, Title IX of the Education
Amendments of 1972,20 U.S.C. § 1681(a), provides: "No person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial assistance." But
§ 1681 does not apply to the membership practices "of a social fraternity or social sorority which is
exempt from taxation under section 501(a) of Title 26, the active membership of which consists
primarily of students in attendance at an institution of higher education." 20 U.S.C. § 1681(aX6)(A).
Also excluded from § 1681 are "the Young Men's Christian Association, Young Women's Christian
Association, Girl Scouts, Boy Scouts, Camp Fire Girls, and voluntary youth service organizations
which are so exempt, the membership of which has traditionally been limited to persons of one sex
and principally to persons of less than nineteen years of age." Id. § 168 1 (a)(6)(B).
Legislative historyreveals thatthe exception for fraternities, sororities, and other traditionally
single-sex organizations was originally not included in Title IX of the Education Amendments of
1972 and was added specifically in 1974 to protect these organizations. Former U.S. Senator Birch
Bayh of Indiana, who was the "author and prime Senator sponsor" of Title IX, explained the
importance of the exception for fraternities and sororities when Title IX was amended in 1974:
It was brought to my attention that under the proposed guidelines, the
traditional practice of many colleges and universities whereby social fraternities and
sororities receive relatively low rent for housing facilities was in jeopardy due to the
[T]itle IX restriction on educational institutions giving any substantial support to any
organization which discriminates on the basis of sex.
... [I]t was not my intent, and I do not believe that it was the intent of the
Congress that [T]itle IX be extended to organizations such as social fraternities and
sororities....
24
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 25 of 39
... I think it is important to point out that this exemption covers only social
Greek organizations; it does not apply to professional fraternities or societies whose
admissions practices might have a discriminatory effect upon the future career
opportunities of a woman.
120 Cong. Rec. 39992 (1974). Senator Bayh wrote in a letter to then Secretary of the Department
of Health, Education, and Welfare, Caspar Weinberger, that "(fJraternities and sororities have been
a tradition in the country for over 200 years. Greek organizations ... must not be destroyed in
misdirected effort to apply Title IX." Id. at 39993.
Also instructive is legislation exempting fraternities and sororities from investigation by the
United States Commission on Civil Rights: "Nothing in this chapter or any other Act shall be
construed as authorizing the Commission, its advisory committees, or any person under its
supervision or control, to inquirb into or investigate any membership practices or internal operations
of any... university fraternity or sorority ...... 42 U.S.C. § 1975a(b). Like Title IX, this exclusion
gives legitimacy to the single-sex status of fraternities and sororities.
Considering existing statutes that preserve the single-sex nature of fraternities and sororities
and prevent intrusion upon them by the government, CSI's denial of official recognition to the
Fraternity in the name of its non-discrimination policy does not justify a violation of the Fraternity's
right to intimate association as an organization that promotes congeniality and a supportive social
structure for male students. See, eg., Boy Scouts ofAm. v. Dale, 530 U.S. 640, 659,120 S. Ct. 2446,
147 L. Ed. 2d 554 (2000) (applying strict scrutiny test). Plaintiffs have thus shown a "clear" or
"substantial" likelihood of success on the merits as to their claim of intimate association. The court
grants plaintiffs' motion for a preliminary injunction on this ground and denies defendants' cross-
25
------------- - - - - - -
v
Case 1:05-c v-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 26 of 39
motion to dismiss. The preliminary injunction applies to both the non-discrimination policy and
CSI's prohibition against rushing and pledging.
Expresdve Assocladon
tr,
The First Amendment protects the "right to associate with others in pursuit of a wide variety
of political, social, economic, educational, religious, and cultural ends." Roberts, 468 U.S. at 622.
This includes a "freedom not to associate," which maybe violated when the government "intru[des]
into the internal structure or affairs of an association [through] a regulation that forces the group to p
accept members it does not desire." Id. at 623. "Me forced inclusion of an unwanted person in a
group infringes the group's feedom of expressive association if the presence of that person affects
in a significant way the group's ability to advocate public or private viewpoints." Dale, 530 U.S.
at 648."
is While the present case concerns intrusion on a group's membership, the Court has noted
that freedom of expressive association "may take many forms." Dale, 530 U.S. at 648. Though
plaintiffs argue that, under Healy v James, supra, the Fraternity has a right to campus recognition,
the Court has made clear that Healy involved a situation under the fivedom of expressive
association-not a separate all-encompassing right to recognition. See Rumsfeld v. Forum for
Academic & Institutional Rights, Inc., 126 S. Ct. 1297,1312 (2006) ("['T]he freedom of expressive
association protects more than just a group's membership decisions. For example, we have held
laws unconstitutional that , . , impose penalties or withhold benefits based on membership in a
disfavored group [citing Healy, 408 U.S. at 180-84]. Although these laws did not directly interfere
with an organization's composition, they made group membership less attractive, raising the same
First Amendment concerns about affecting the group's ability to express its message.) (internal
citations omitted).
In Healy, the group in question, a local chapter of Students fora Democratic Society("SDS')
at Central Connecticut State College ("CCSC"), after filing an application for recognition that
complied with CCSC's rules, was denied recognition because the college president feared that SDS '
was affiliated with a national group known for violence. See 408 U.S. at 183-84 & n.11. The Court
noted that SDS was not challenging the requirements for recognition and that "once ... an
application [for official recognition is filed] in conformity with the requirements, the burden [is]
upon the Collcge administration to justify its decision of rejection." Id. at 184. The Court then
26
F'
Case 1:06-cv-02919-DLI-MDG Document 41 Flled 08/11/2006 Page 27 of 39
In evaluating plaintiffs' claim of expressive association under the First Amendment, the
initial inquiry is whether the group engages in "expressive association." Id. If so, the court must
determine whether the state action "would significantly affect the [group's] ability to advocate public
or private viewpoints." Id. at 650. Although a group cannot "erect a shield against
antidiscrimination laws simply by asserting that mere acceptance of a member from a particular
group would impair its message," courts must "give deference to an association's assertions
regarding the nature of its expression ... [and] to an association's view of what would impair its
expression." Id. at 653. In the last stage, as with evaluating a claim of intimate association, the court
applies a strict scrutiny test, assessing whether the state action serves a compelling interest and
balancing the state's interest with the burden imposed on the group's associational rights. See id.
at 657-58; Louisiana Debating, 42 F.3d at 1498.
Deciding whether a group is an expressive association involves an analysis of the group's
viewpoints, ideals, and activities. The Supreme Court has cautioned: "It is possible to find some
proceeded to analyze reasons that would justify an educational institution denying recognition to a
student group, namely, (1) a group's known affiliation with an organization with illegal goals and
intent to further such illegal goals, id. at 186, (2) a group engaging in "advocacy `directed to inciting
or producing imminent lawless action and ... likely to incite or produce such action,'" id. at 188
(quoting Brandenburg v. Ohio, 395 U.S. 44,447 (1969)), and (3) a group's "unwillingness to be
bound by reasonable school rules governing conduct," id. at 191. The Court emphasized the
distinction "between advocacy and action." Id. at 189. For example, an educational institution's
disagreement with a group's opinions or philosophies is not a valid ground for denying recognition.
See id. at 187. However, "[a]ssociational activities need not be tolerated where they infringe
reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other
students to obtain an education." Id. (citing TYnker v Des Moines Indep. Cmty. Sch. Dist., 393 U. S.
"
503, 89 S. Ct. 733, 21 L. Ed. 2d 731(1969)).
Healy is very instructive on the relationship between a campus and its student organizations.
However, the situation here is not analogous to Healy, as plaintiffs are challenging the rules that CSI
has imposed and the Fraternity's penalty of non-recognition for not following rules that plaintiffs t
believe infringe on their associational rights.
27
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 28 of 39
kernel of expression in almost every activity a person undertakes-for example, walking down the
street or meeting one's friends at a shopping mall-but such a kernel is not sufficient to bring the
activity within the protection of the First Amendment." Stanglin, 490 U.S. at 25. Nevertheless, it
is not necessary that the group be devoted to advocacy, Dale, 530 U.S. at 648, or taking public
stances, Duarte, 481 U.S. at 548. Indeed, the nature of the group's expression may be private, and
"[t]he fact that the organization does not trumpet its views from the housetops ... does not mean that
its views receive no First Amendment protection" Dale, 530 U. S. at 648, 656. Pursuits or activities
that may bear on a group's classification as an expressive association include community service,
Duarte, 481 U.S. at 548; "transmit[ting] ... a system of values," Dale, 530 U.S. at 650; and "civic,
charitable, lobbying, [or] fundraising" activities, Roberts, 468 U.S. at 627.
In the only case involving whether a fraternity or sorority qualifies as an expressive
association, the Third Circuit in Pi Lambda Phi held that the fraternity chapter was not an expressive
association but admitted that it was "not holding that fraternities per se do not engage in
constitutionally protected expressive association." 229 F.3d at 444. The Third Circuit further noted:
"It is entirely possible that a fraternity (or sorority, or similar group) could make out a successful
expressive association claim under the rules laid out in Stanglin, Roberts, and Dale. We, hold only
that the University chapter of Pi Lambda Phi has failed to make out such a claim on the record before
us." Id. at 444-45. The court in Pi Lambda Phi based its finding against expressive association on
evidence that the finternity chapter: (1) "[n]ever took apublic stance on any issue ofpublic political,
social, or cultural importance," (2) had never "done anything to actively pursue the ideals
underlying" its connection to the international organization of Pi Lambda Phi, "the country's first
non-sectarian fraternity," (3) had never participated in any individual development programs run by
28
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 29 of 39
the international Pi Lambda Phi organization, and (4) showed "underwhelming" participation in only
"a couple of relatively minor acts of charity." Id. at 444.
In contrast to Pi Lambda Phi, the Fraternity in the case at bar has a more clearly articulated
expressive identity. The Fraternity expresses itself as a "predominantly Jewish male fraternity" and
pursues activities congruent with this identity, including weekly meetings with a Rabbi and once
building a sukkah. According to plaintiffs, they plan an average of one community service event per
semester, an endeavor that relates to the statement in the Fraternity's bylaws that it "encourage[s]
vigorous participation in university, college and general activities in [the] community." (Am.
Compl. Ex. 2 pmbl.) Furthermore, the purposes the Fraternity has adopted from AEPPs
Constitution--namely, promoting "[p]ersonal perfection, a reverence for God and an honorable life
devoted to the ideal of service to all mankind; lasting friendships and the attainment of nobility of
action and better understanding among all faiths"-are not so dissimilar from the Boy Scouts'
mission "to instill values in young people and ... to prepare them to make ethical choices over their
lifetime in achieving their full potential." See Dale, 530 U.S. at 649 (Boy Scouts qualified as
expressive association, and New Jersey public accommodations law requiring group to accept
homosexual scoutmaster was violation of group's freedom of expressive association). The
Fraternity's main pursuit of "brotherhood" is also similar to the Boy Scouts' purposes in Dale.
At oral argument, defendants stated that, at this point in the litigation, they do not challenge
the Fraternity's classification as an expressive association. (Tr. at 56.) As defendants do not dispute
that the Fraternity is an expressive association,16 and this classification is reasonably supported by
16 In their memorandum of law, defendants also do not challenge the classification of the
Fraternity as an expressive association and, rather, jump immediately to arguing that "[e]ven
assuming that the fraternity is an expressive association, it cannot show a substantial likelihood of
29
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Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08111/2006 Page 30 of 39
principles outlined in cases such as Dale, plaintiffs have shown "clear" or "substantial" likelihood
of success on the merits as to this first question."
success on its claim that [CSI's] Policies infringe its right to expressive association." (Defs.' Mom.
at 19.)
" The court is aware of the recent decision in Christian Legal Soc'y Chapter of Univ, of
California v. Kane, No. C 04-04484,2006 WL 997217 (N.D. Cal. May 19, 2006), where the court
held that Roberts and Dale were inapplicable to Hastings Law School's denial of official recognition
to a chapter of the Christian Legal Society ("CLS"), a group that bars individuals who engage in
homosexual conduct or who have religious beliefs different from those approved by CLS, because
it violated the law school's non-discrimination policy. Kane distinguished Roberts and Dale on the
basis that these cases were limited to situations of "forced inclusion." 2006 WL 997217, at * 15.
The court disagrees with Kane's analysis. First, Roberts and Dale instruct that the initial
inquiry in analyzing a claim of expressive association is whether a group qualifies as an expressive s
association, an analysis that Kane did not entertain. See Dale, 530 U.S. at 648.
Second, the Kane court focused too literally on the idea of forced inclusion as a way of '
distinguishing Roberts and Dale. Any group faced with state action or law that must be complied
with has a choice between disbanding or continuing to operate by adjusting itself to comply with the
state action or law. From the perspective of a group that insists on its continued existence, such a
choice boils down to "forced inclusion." In Roberts, Jaycees had a choice between disbanding or
complying with the Minnesota Department of Human Rights' order to cease and desist from
discriminating on the basis of gender in its membership practices. See 468 U.S. at 615-16. In Dale,
the Boy Scouts had a choice to disband or comply with the New Jersey public accommodations law.
See 530 U.S. at 646-47. Here, the Fraternity faces the choice to remain unrecognized by the CSI
campus or adjust its membership policies to include women. The fact that the Fraternity is not faced
with having to disband altogether does not make the instant matter distinguishable, as the Fraternity
has the equivalent of a disbanded status with respect to the environment in which is seeks to exist
and with respect to the environment responsible for the state action, i.e., CSI. Jaycees and the Boy
Scouts were subject to state laws that were more far-reaching geographically than the CSI campus
policies.
For these reasons, the court disagrees with Kane's distinction that "Hastings is not directly
ordering CLS to admit certain students. Rather, Hastings has merely placed conditions on using
aspects of its campus as a forum and providing subsidies to organizations." 2006 WL 997217, at
* 16. Roberts and Dale are applicable to the instant case and in analyzing whether the Fraternity
qualifies as an expressive association.
This court's disagreement with Kane is consistent with another recent decision, Christian
Legal Soc y v Walker, 453 F.3d 853 (7th Cir. 2006). In Walker, where the Southern Illinois
University School of Law ("SILP) revoked the official recognition of its CLS chapter, the Seventh
Circuit analyzed the situation under Roberts and Dale and noted that "SIU's enforcement of its,
antidiscrimination policy upon penalty of derecognition can onlybe understood as intended to induce
CLS to alter its membership standards." 453 F.3d at 863. The court found that SIU's non-
30
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Case 1:05-cw-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 31 of 39
The next inquiry is whether CSI's state action "would significantly affect the [Fraternity's]
ability to advocate public or private viewpoints." See Dale, 530 U.S. at 650. Defendants argue that
the Fraternity's expressive activity would not be burdened by inclusion of women members.
Most of the Fraternity's pursuits and ideals are the kind that the Court has found would not
be significantly affected by the inclusion ofwomen. For example, with regard to community service
and participation in community and campus events, in Duarte the Court noted that admitting women
"does not require [the Rotary Clubs] to abandon their basic goals of humanitarian service, high
ethical standards in all vocations, good will, and peace." 481 U.S. at 548. The Court in Duarte also
suggested that, rather than thwarting the Rotary Clubs' purposes, admitting women would actually
further the Rotary Clubs' goal of reflecting a "cross section of community leaders." Id. at 548-49.
In light of characterizing the infringement of Rotary members' expressive association as "slight,"
the Court found that this burden was justified by the compelling interest in eliminating
discrimination provided by California's Unruh Civil Rights Act. Id. at 549.
f
In Roberts, the Court found that, though Jaycees members "regularly engage in a variety of
civic, charitable, lobbying, fundraising, and other activities worthy of constitutional protection under
the First Amendment," there was
no basis in the record for concluding that admission of women as full voting
members will impede the organization's ability to engage in these protected activities
or to disseminate its preferred views. The Act requires no change in the Jaycees'
creed of promoting the interests of young me % and it imposes no restrictions on the
organization's abilityto exclude individuals with ideologies orphilosophies different
from those of its existing members. Moreover, the Jaycees already invites women
to share the group's views and philosophy and to participate in much of its training
discrimination policy burdened CLS's "abilityto express its ideas" because "forcing [CIS] to accept
as members those who engage in or approve of homosexual conduct would cause the group as it
currently identifies itself to cease to exist." Id.
31
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 32 of 39
and community activities. Accordingly, any claim that admission of women as full
voting members will impair a symbolic message conveyed by the very fact that
women are not permitted to vote is attenuated at best.
468 U.S. at 626-27 (internal citation omitted). Thus, weighed against Minnesota's compelling state
interest in "eliminating discrimination and assuring its citizens equal access to publicly available
goods and services," the Court found that Jaycees failed to demonstrate a serious burden on its right
to expressive association. Id. at 623-24, 628.
With regard to the Fraternity's dedication to promoting Jewish culture, plaintiffs have not
explained why women would significantly affect the Fraternity's ability to engage in such
expression. Indeed, as pointed out b defendants at oral
by argument, as the Fraternity does not
discriminate on the basis of faith and welcomes all men who are comfortable with belonging to a
group affiliated with Jewish culture, it is difficult to believe how a woman, whether Jewish or not,
would not be able to hold the same appreciation for Jewish culture.
Another pursuit named by the Fraternity is the notion of "brotherhood." According to
descriptions given by Mr. Khaychuk, "brotherhood," which shares at least some aspects with a
family relationship, is only achievable between males. In part, it is achievable because the risk of
romantic relations does not exist as with females; however, this is not the whole story, as Mr.
Khaychuk testified that brotherhood is not necessarily extinguished when a homosexual or bisexual
male is concerned, nor can it exist between a male and a lesbian.
Amici North-American Interfraternity Conference ("NIC") and National Panhellenic
Conference ("NPC'j, in their memorandum, also place importance on the notion of "brotherhood,"
as well as on its counterpart, "sisterhood":
Fraternities and sororities have existed as single-sex organizations for over 200 years
32
4
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 33 of 39
on North-American college and university campuses. Many Greek organizations
nationwide provide housing for their members. The forced inclusion of all students
would destroy the Greek system as it has successfully existed as part of campus life.
Male fraternal organizations generally seek to establish brotherhood and the
deep bonds associated with brotherhood; female fraternal organizations likewise seek
to establish sisterhood and the deep bonds associated therewith. The forced inclusion
of females into all-male organizations and the forced inclusion of males into all-
female organizations would destroy the development of brotherhood and sisterhood
at the NIC and NPC organizations.
(Amici Mem. at 14-15.)
At oral argument, defendants labeled "brotherhood" as plaintiffs' strongest argument for
expressive association status, describing it straightforwardly: "[W]e are obviously a group of men
who believe in the value of a group of men. So if you stick a woman into this picture, something
will not feel right. Her very presence, mere presence, will take away the force of the message." (Tr.
at 61.) Yet defendants argue that such a message has not been well-articulated by the Fraternity.
This may be because the Fraternity's notion of "brotherhood" is simply difficult to articulate, as
evidenced by Mr. Khaychuk's inability to fully describe the term and its meaning to the Fraternity.
At the same time, the Court in Roberts at least hinted that a men-for-the-sake-of-men's
organization does not fall under the protection of freedom of expressive association. In response to
Jaycees' argument that allowing women to vote might change the message communicated by the
group, as women might have different opinions than men regarding issues such as the federal budget
or foreign relations, the Court responded that Jaycees was relying "solely on unsupported
generalizations about the relative interests and perspectives of men and women" and further
explained as follows:
Although such generalizations may or may not have a statistical basis in fact with
respect to particularpositions adopted by the Jaycees, we have repeatedly condemned
33
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 34 of 39
legal decisionmaking that relies uncritically on such assumptions. In the absence of
a showing for more substantial than that attempted by the Jaycees, we decline to
indulge in the sexual stereotyping that underlies appellee's contention that, by
allowing women to vote, application of the Minnesota Act will change the content
or impact of the organization's speech. j
468 U.S. at 628 (internal citations omitted). In Duarte, there was testimony that the Rotary Clubs
excluded women from membership for reasons of "fellowship ... enjoyed by the ... male
membership," 481 U.S. at 541, but the Court did not further explore or describe this purpose,
perhaps because it was not as contralto the Rotary Clubs as some of the groups' other purposes. The
importance the Fraternity gives to "brotherhood" differs from the stereotyping rejected in Roberts
because it rests not on views about women but on the idea that value can be gained from a
community of male-to-male friendships and that plaintiffs want to express themselves as such a
group. Viewing the issue this way supports plaintiffs' contention that the inclusion ofwomen would
impair the Fraternity's message. Nevertheless, because clouds still surround the idea of
"brotherhood," the court does not consider the answer clear at this time.
t
Another possible crux of the Fraternity's expressive message is one that has been named but
not completely elaborated upon-that plaintiffs are part of a "predominantly Jewish male fraternity,"
a description that suggests that this expressive message is composed of the two inseparable k
components of (1) appreciating Jewish culture (2) as a male. At this time, however, the record has
not been sufficiently developed for the court to determine the effect of admitting women to such a
group, whether Jewish or not.
Based on the record before the court, the plaintiffs have not shown a "clear" or "substantial"
likelihood of success on the merits that admitting women would significantly affect the Fra
temtys
expressive purposes. The Fraternity's situation is distinguishable from Roberts and Duarte,
34
:G
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08!11/2006 Page 35 of 39
particularly given the Fraternity's strong assertion of "brotherhood" as a main component of its
expressive activity, but not enough for the plaintiffs to satisfy their burden at this time. Plaintiffs'
preliminary injunction motion is denied on this ground. However, as can be gleaned from the
discussion above, plaintiffs have stated a claim upon which relief may be granted Therefore,
defendants' 12(bx6) motion is denied with respect to plaintiffs' expressive association claim.
V. Equal Protection
Therequirementin the Fourteenth Amendment thatno State shall "denyto anyperson within
its jurisdiction the equal protection of the laws" means that "all persons similarly situated should be
treated alike." City of Cleburne v. Cleburne Living Or., 473 U.S. 432,439, 105 S. Ct. 3249, 87 L.
Ed. 2d 313 (1985). In addition to showing "selective adverse treatment ofindividuals compared with
other similarly situated individuals," Bizzarro v. Miranda, 394 F.3d 82,86 (2d Cir. 2005), a plaintiff
in establishing an equal protection claim must show that the "selective treatment was based on
impermissible considerations such as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure a person." Id. (quoting LeClair v.
Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980)).
While plaintiffs allege that the Fraternity has been treated differently than other student
groups that CSI has recognized, defendants counter that the Fraternity is not similarly situated to
other recognized student groups, because other groups, including the "Delta Delta Club" and the
"According to an unofficial CSI website, run by the CSI Computer Club, the purpose of the
"Delta Delta Club" is "to create a fellowship amongst college students who will work together in
building and achieving lasting friendships and to create a new tradition within the college
atmosphere. They accomplish this mission through fundraisers, social gatherings, and open
informative lectures on various issues facing today's college student." College of Staten bland,
35
4,
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/11/2006 Page 36 of 39
"Theta Phi Club,"" have complied with CSI's non-discrimination policy. The Delta Delta Club is
affiliated with national sorority Sigma Delta Tau, which lists it as a chartered chapter as of
November 10, 1996. See Sigma Delta Tau, http://www.sigmadeltitau.com (last visited August 11,
2006). The Theta Phi Club is affiliated with national sorority Phi Sigma Sigma, which lists it as a
chapter. See Phi Sigma Sigma, http://phisigmasigma.org (last visited August 11, 2006). Plaintiffs'
equal protection claim thus amounts to being treated differently than organizations that have been
recognized after complying with CSI's non-discrimination policy. Therefore, plaintiffs fail to allege
being treated differently than similarly situated groups.
Plaintiffs also do not allege membership in a protected class. See Pi Lambda Phi, 229 F.3d
at 447 n.6 ("fraternity membership is not a suspect classification"). Nor have plaintiffs submitted
proof that defendants acted maliciously; rather, plaintiffs simply allege that defendants acted
"intentionally" and "in bad faith" (Am. Compl. IM 90-92, 122.) Thus, plaintiffs have neither
sufficiently pled theirequal protection claim nor shown "clear" or "substantial" likelihood of success
on the merits. Defendants' motion to dismiss plaintiffs' equal protection claim is granted, and
plaintiffs' motion for a preliminary injunction on this ground is denied.
VL Title IX
As mentioned above, Title IX provides that "[nlo person in the United States shall, on the
Clubs and Organizations, http://csistudents.org/clublist (last visited August 11, 2006).
"The CSI Computer Club website lists the purpose ofthe "Theta Phi Club" as "to promote
friendship and cooperation among collegians of all races, creeds, and religions; to raise the standard
of academic ideals; and to promote philanthropic endeavors. The club achieves its goals through
meetings, philanthropic programs, and study groups." Id.
h
36 ?.
Case 1:05-ev-02919-DLI-MDG Document 41 Filed 08111/2006 Page 37 of 39
basis of sex, be excluded from participation in, be denied the benefits ofi or be subjected to
discrimination under any education program or activity receiving Federal financial assistance." 20
U.S.C. § 1681(a). Plaintiffs argue that, since the Fraternity has been denied campus recognition for
being an all-male group, defendants have discriminated against them. Yet plaintiffs clearly allege
in their complaint that defendants refused to recognize the Fraternity because it did not comply with
CSI's non-discrimination policy. Thus, in arguing that defendants violated Title IX, plaintiffs
essentially rely on rephrasing the allegation in their complaint. Plaintiffs turn CST's stance that the
Fraternity shall not discriminate on the basis of sex into meaning that the Fraternity cannot remain
all-male. This argument does not work. See Jones v Bd. of Ed. of City Sch. Dist. of city of New
York 632 F. Supp. 1319, 1322 (E.D.N.Y. 1986) (where Board of Education invoked Title IX to
require all-female public school to convert into a co-educational institution, and plaintiffs responded
by filing suit against Board for violating Title IX, court reasoned: 'T]he issue is whether Title IX
prohibits coeducation. Clearly it does no such thing. Title IX forbids discrimination. For plaintiffs
to argue that it forbids coeducational schools turns the statute on its head.')
Plaintiffs have not stated a claim upon which relief can be granted under Title IX. Thus,
plaintiffs' Title IX claim is dismissed, and plaintiffs' motion for a preliminary injunction on this
ground is denied
VII. Qualified Immunity
Plaintiffs assert claims against defendants Springer and Jackson in their individual capacities
for both monetary and injunctive relief, and these defendants raise the defense of qualified immunity.
In determining whether qualified immunity applies, the court `must first determine whether -:
37
Case 1:05-cv-02919-DLI-MDG Document 41
Flied 08/11/2006 Page 38 of 39
the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to
determine whether that right was clearly established at the time of the alleged violation." Wilson v.
Layne, 526 U.S. 603, 609,119 S. Ct.1692,143 L. Ed. 2d 818 (1999) (quoting Conn v. Gabbert, 526
U.S. 286, 290,119 S. Ct. 1292,143 L. Ed. 2d 399 (1999)). Here, two viable constitutional claims
remain, those of intimate and expressive association. As to whether the rights in this case are clearly
established, "[t]he defense applies if reasonable officials would not have understood that their
actions, in the instant circumstances, violated plaintiffs right[s]." Patel v Searles, 305 F.3d 130,
138 (2d Cir. 2002). Although the general rights to intimate and expressive association may be
"clearly established," under the facts specific to this case, the right of a fraternity to claim these
protections is not clearly established. See id. Insofar as Springer and Jackson are sued in their
individual capacities for the claims of intimate and expressive association, plaintiffs' claims for
monetary relief against them are dismissed.
However, qualified immunity does not protect against claims for equitable relief. Ford v.
Reynolds, 316 F.3d 351, 356 (2d Cir. 2003). Therefore, the claims against Springer and Jackson for
equitable relief remain in this case.
VIII. Conclusion
For the reasons set forth above, the court grants plaintiffs' motion for a preliminary
injunction on the basis of their intimate association claim. The preliminary injunction applies to
CSI's non-discrimination policy and prohibition against rushing and pledging, and CSI is ordered
to grant official recognition to the Fraternity. Plaintiffs' preliminary injunction motion is denied
with respect to all other claims. Defendants' cross-motion to dismiss plaintiffs' complaint is granted
38
Case 1:05-cv-02919-DLI-MDG Document 41 Filed 08/1112006 Page 39 of 39
with respect to plaintiffs' equal protection and Title IX claims but denied as to the intimate and
expressive association claims. The individual capacity claims against Springer and Jackson, for
monetary relief only, are dismissed. This matter is referred to the magistrate judge for further
discovery and proceedings.
SO ORDERED.
DATED: Brooklyn, New York
August 11, 2006
/s/
DORA L. IRIZARRY
United States District Judge
39
VERIFICATION
I, Joshua R. Erhardt, hereby verify that the averments set forth in the within Motion for
Preliminary Injunction and Memorandum In Support of Preliminary Injunction are true
and correct to the best of my knowledge, information and belief.
I understand that the false statements contained herein are subject to the penalties of 18
Pa. CSA Section 4904 relating to unsworn falsification authorities.
'Joshua R Erhardt
Dated: ' /16 /p(
CERTIFICATE OF SERVICE
I hereby certify that the foregoing is being mailed to all parties entitled to service under
Rule 5 of the Pennsylvania Rules of Civil Procedure on the 16`h day of August, 2006.
Tammy M. D osa
SERVICE LIST:
Dana Scaduto
General Counsel
Dickinson College
I.D. No. 41260
P.O. Box 1773
College & Louther Streets
Carlisle, PA 17013
McNees, Wallace & Nurick
Elizabeth A. Maguschak
I.D. No. 39853
Kimberly A. Selemba
I.D. No. 93535
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17018-1166
N:\CLIENTS\SIGMACHI\Dickinson College\Pleadings\Motion for TRO and Preliminary Injunction & Memorandum.DJM.doc-tkd
31
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JOSHUA R. ERHARDT, ET AL.,
PLAINTIFFS,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PRELIMINARY INJUNCTION ORDER
V.
DICKINSON COLLEGE,
DEFENDANT
NO. 06-2647 CIVIL TERM
IN RE: PRELIMINARY INJUNCTION
ORDER OF COURT
AND NOW, this 22nd day of August, 2006, upon consideration of Plaintiff's Motion
for Preliminary Injunction, a Rule is issued upon the Defendant to show cause why the
Relief requested by the Plaintiff should not be granted.
IT IS HEREBY ORDERED AND DIRECTED that the Defendant shall file an
answer to the Plaintiff's Motion and a legal brief in support of their position on or before
12:00 noon on September 5, 2006. Said answer and brief shall be served on the
Attorneys for Plaintiff.
A full hearing on the matter shall be heard on Wednesday, September 13, 2006
beginning at 9:30 a.m. in Courtroom No. 5 of the Cumberland County Courthouse,
Carlisle, Pennsylvania.
By the Court,
N\ --? 4A
M. L. Ebert, Jr., J.
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Timothy M. Burke, Esquire
Daniel J. McCarthy, Esquire
Kevin Canavan, Esquire
Thomas Ollason, Esquire
Attorneys for Plaintiffs
Dana Scaduto, General Counsel
Dickinson College e
Elizabeth A. Maguschak, Esquire
Kimberly A. Selemba, Esquire
Attorneys for Defendant
bas
JOSHUA R. ERHARDT, ET AL.
PLAINTIFFS,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PRELIMINARY INJUNCTION ORDER
V.
DICKINSON COLLEGE,
DEFENDANT
NO. 06-2647 CIVIL TERM
IN RE: PRELIMINARY INJUNCTION
AMENDED ORDER OF COURT
AND NOW, this 25`h day of August, 2006, due to a conflict with the Court's
schedule, the Order of Court dated August 22, 2006 is amended to provide that, a full
hearing on the matter shall be heard on Friday, September 15, 2006 beginning at
10:00 a.m. in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle,
Pennsylvania. The rest of the order shall remain in full force and effect.
By the Court,
?* -?, ?-LA V
M. L. Ebert, Jr., J.
? rnothy M. Burke, Esquire
Daniel J. McCarthy, Esquire
,Kevin Canavan, Esquire
Thomas Ollason, Esquire
Attorneys for Plaintiffs
Ana Scaduto, General Counsel
Dickinson College
VI(rizabeth A. Maguschak, Esquire
Kimberly A. Selemba, Esquire
Attorneys for Defendant
bas
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A8VIONU,h, ?,,Ic'd 3Hi 30
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
JOSHUA R. ERHARDT, MICHAEL
CIATTO, JEREMY LYON, PATRICK CIVIL ACTION
SHEAHAN, ALEX WHITNEY, and
OMICRON CHAPTER OF SIGMA CHI No. 2006-2647
FRATERNITY,
Plaintiffs
V.
DICKINSON COLLEGE,
Defendant
DEFENDANT'S RESPONSE TO PLAINTIFFS'
MOTION FOR PRELIMINARY INJUNCTION
Dickinson College (the "College"), by and through its attorneys, McNees Wallace
& Nurick LLC, for its answer to Plaintiffs' motion for preliminary injunction, states as
follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted in part and denied in part. It is admitted that the relationship
between Dickinson College and its students is contractual in nature. The remaining
averments of this paragraph are denied. The College specifically denies that "Dickinson
students enjoy the same constitutional associational rights that other citizens enjoy." By
way of further answer, the terms of the relationship between Dickinson College and its
students are located in several communications, including the Student Handbook, the
Community Standards, brochures, course offering bulletins, and other official
statements distributed by the College from time to time, each of which become
incorporated into the terms of the relationship between Dickinson and its students.
These documents speak for themselves. Plaintiffs' characterizations of the terms of the
relationship between Dickinson College and its students are denied. By way of further
answer, consistent with its right to regulate student conduct, on February 6, 2006,
Dickinson College published an official statement clarifying the position of the College
regarding student membership in unrecognized fraternities. A copy of this statement is
attached hereto as Exhibit "A". This official statement became incorporated into the
relationship between Dickinson College and its students on February 6, 2006.
5. Denied. Dickinson College denies that it breached any contract with its
students. By way of further answer, consistent with its right to regulate student conduct,
on February 6, 2006, Dickinson College published an official statement clarifying the
position of the College regarding student membership in unrecognized fraternities.
Plaintiffs have mischaracterized the content of the February 6, 2006 statement, which is
a writing that speaks for itself.
6. Admitted in part and denied in part. It is admitted that the parties entered
into a stipulation filed on June 12, 2006. Dickinson College denies Plaintiffs'
characterization of the stipulation, which is a writing that speaks for itself.
7. Admitted in part and denied in part. It is admitted that Plaintiffs have filed
a motion for preliminary injunction. It is denied that the Plaintiffs are entitled to the relief
requested in their motion.
-2-
WHEREFORE, Defendant, Dickinson College, respectfully requests the Court to
deny Plaintiffs' motion for preliminary injunction.
Respectfully submitted,
McNEES WALLACE & NURICK LLC
By?Ow.a ?bcaa
Elizabeth A. Maguschak
I.D. No. 39853
Kimberly M. Colonna
I.D. No. 80362
Kimberly A. Selemba
I.D. No. 93535
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Dana Scaduto, General Counsel
Dickinson College
I.D. No. 41260
West College Building
P.O. Box 1773
College & Louther Streets
Carlisle, PA 17013
Attorneys for Defendant
Dated: September 5, 2006
-3-
VERIFICATION
Subject to the penalties of 18 Pa.C.S.§ 4904 relating to unsworn
falsification to authorities, I certify that am the Associate Dean of Students of
Dickinson College and am authorized to make this Verification on its behalf. I
further certify that the facts contained in Defendant Dickinson College's
Response to Plaintiffs' Motion for Preliminary Injunction are true and correct to
the best of my knowledge, information and belief.
Date: September 5, 2006
Michael lone
Associate Dean of Students
Exhibit A
(.)F1:ICL M 11111 D3.e1 OF $1'UUFNTS
DIV1s3oN w-- STCnr:a1' LIFE
February 6, 2006
To the members of the Omicron Chapter of Sigma Chi
Jeremy Lyon Josh Erhardt Michael Ciatto
Andrew Reisig Mark Harrison Christopher Harris
Joseph Kelley Jason Kiepec Alex Holmes
Patrick Cortese Wesley McCoy Nick Peper
Patrick Coyle Graham Rockwell Ricky Reed
Chris Crests Patrick Sheahan Steven Reid
On February 1, 2006, the current membership in Sigma Chi received a message advising you of
the College's position with respect to the impact of your decision to join Sigma Chi. You were
advised that no member will be suspended or expelled by Dickinson College based solely on his
decision to join Sigma Chi in or before 2005.
You were also toll that certain privileges afforded by Dickinson College to its students had
become immediately subject to being withheld or withdrawn from members of the banned
organization. The list of privileges included the bestowing of academic honors (including
Dean's List), receiving letters of recommendation from the College, acting as an official
representative of the College (including participating in intercollegiate athletics, and working as
members of Residential Life staff or Admissions Office tour guides), and eligibility for merit-
based financial aid (whether new or renewal of previous awards).
Apparently, there remains some confusion about the College's previous message. We are,
therefore, taking this opportunity to once again clarify and communicate our position.
Members of Sigma Chi before its expulsion. Those members of Sigma Chi who
joined the organization while it was recognized by the College and in good standing
(neither suspended or expelled), are not subject to discipline or withholding of privileges
based solely on their membership in the fraternity. However, these members are
responsible individually and collectively for any Sigma Chi recruiting and/or membership
activities involving Dickinson College students from this point forward. If Sigma Chi
engages in any recruiting or membership activities, each individual member will be
subject to expulsion for the activities of the group. These members also remain
responsible for their individual conduct under the Community Standards. (NOTE: This
statement reflects a change from the message of February 1, 2006 with respect to
privileges)
Members of Sigma Chi during its suspension or after its expulsion. Those
individuals who joined Sigma Chi during the period of its suspension or following its
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D00079
expulsion but before February 2006; are not subject to discipline or withholding of
privileges based solely on their membership in the fraternity. However, these members
are responsible individually and collectively for any Sigma Chi recruiting and/or
membership activities involving Dickinson College students from this point forward. If
Sigma Chi engages in any recruiting or membership activities, each individual member
will be subject to expulsion for the activities of the group. These members also remain
responsible for their individual conduct under the Community Standards. (NOTE: This
statement reflects a change from the message of February 1, 2006 with respect to
privileges)
• College's position as of February 1, 2006- Any student of Dickinson College who
joins an unrecognized fraternity or sorority will be suspended or expelled from Dickinson
College. The membership of an unrecognized fraternity or sorority that engages in
recruiting or any other membership activities is subject to expulsion from the College.
Sigma Chi is an expelled organization, and is not recognized by the College. Despite our earlier
efforts to encourage your organization to cease operation consistent with the decision of the
College, you have failed to do so. The failure of Sigma Chi to cease activity can only be
sustained by the actions of its members.
The continued operation of Sigma Chi is inconsistent with the College's residential living-
learning experience and our expectations for students associated with such organizations.
Organizations comprised solely of students that operate on the Dickinson campus do so within a
framework that allows the College to direct, guide and counsel students through an educational
process on the journey toward citizen-leadership.
If you have any questions, please contact me at 717-245-1556 or malonem oodickinson.edu
Sincerely,
Michael S. Malone
D00080
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
foregoing document was served by U.S. first-class mail, postage prepaid, upon the
following:
Kevin Canavan
Swartz Campbell LLC
1601 Market Street, Floor 34
Philadelphia, PA 19103
r--LNo -% C 0'?
Dana Scaduto
General Counsel for Defendant
Dickinson College
Dated: September 5, 2006
N
>7
L. J Q
1 I
-10
•( W CJrn
L t
O D
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
JOSHUA R. ERHARDT, MICHAEL
CIATTO, JEREMY LYON, PATRICK CIVIL ACTION
SHEAHAN, ALEX WHITNEY, and
OMICRON CHAPTER OF SIGMA CHI No. 2006-2647
FRATERNITY,
Plaintiffs
V.
DICKINSON COLLEGE,
Defendant
JOINT STIPULATION FOR ENTRY OF DISCOVERY AND PROTECTIVE ORDER
Plaintiffs and Defendant, by and through their respective attorneys, stipulate and
agree as follows:
Background Information
1. The above-captioned litigation (the "Litigation") involves various claims
asserted by Plaintiffs that arise out of and relate to actions taken by Dickinson College
with respect to the Omicron Chapter of Sigma Chi Fraternity (the "Chapter") and
students affiliated with the Chapter.
2. Dickinson College is an "Educational Institution" as that term is defined by
the Family Educational Rights and Privacy Act and the regulations promulgated there
under (the Act and its regulations are collectively referred to herein as "FERPA") 20
U.S.C. § 1232; 34 C.F.R., Ch. 99.
3. Dickinson College is subject to FERPA.
4. Generally, FERPA protects from disclosure most information about a
student of an Educational Institution, unless the student has given written consent to the
disclosure. FERPA provides some limitations and exceptions to the general rule
requiring a student's written consent before information about that student is disclosed
by the Educational Institution.
5. In order for the issues raised in the present litigation to be heard fully and
fairly, certain information protected by FERPA must be disclosed to the Plaintiffs, the
Parties' attorneys and experts, and the Court.
6. Such disclosure, while necessary to this litigation, will constitute a violation
of FERPA, absent an appropriate court order.
7. All terms appearing in ALL CAPS in this Stipulation and in any order
entered pursuant to this Stipulation shall have the definition provided to them by
FERPA.
Plaintiffs' Education Information
8. The term "Plaintiffs' Education Information" shall include the EDUCATION
RECORDS and/or PERSONALLY IDENTIFIABLE INFORMATION of Joshua R.
Erhardt, Michael Ciatto, Jeremy Lyon, Patrick Sheahan, and Alex Whitney.
9. Plaintiffs hereby consent, through their attorneys of record, to the
disclosure by Dickinson College of Plaintiffs' Education Information for purposes of this
Litigation.
Other Students' Education Information
10. The term "Litigation-Related Student Information" shall include the
following information:
-2-
a) all EDUCATION RECORDS of any Dickinson College student,
other than an individual plaintiff, who was a member of the Chapter
at any time from the 2000-2001 academic year to the present
including without limitation, PERSONALLY IDENTIFIABLE
INFORMATION, transcripts, grade reports, incident reports,
disciplinary reports, and e-mail correspondence; and
b) any other PERSONALLY IDENTIFIABLE INFORMATION or
EDUCATION RECORD of any Dickinson College student, other
than an individual plaintiff, that is requested in the course of
discovery by Plaintiffs or that is relevant to Dickinson College's
defenses to the claims asserted in the Litigation, including without
limitation, transcripts, grade reports, incident reports, disciplinary
reports, and e-mail correspondence.
11. The term "Litigation-Related Student Information" does not include the
identity of any student who was the victim of any CRIME OF VIOLENCE or NOW
FORCIBLE SEX OFFENSE, which information shall not be disclosed by Dickinson
College, absent a specific finding by the Court that such information is necessary to the
claims or defenses raised in the Litigation.
12. Prior to disclosing any Litigation-Related Student Information, Dickinson
College must and shall provide written notice to each student whose protected
information is sought to be disclosed, which notice shall state that objections to the
disclosure must be made, in writing, to the Court within ten days. Dickinson College
-3-
shall not disclose the Litigation-Related Student Information until after the ten-day
period for objections has passed. If any objection to disclosure is received, Dickinson
College shall not disclose the Litigation-Related Student Information that is the subject
of the objection unless and until the Court has overruled the objection and ordered the
disclosure to be made.
13. Plaintiffs and Dickinson College agree to take all reasonable steps to
prevent Litigation-Related Student Information from being disclosed to the public or
made a part of any public record. Thus, in addition to the College's issuance of written
notice to each student (or the parent/legal guardian of the student) whose protected
information is sought to be disclosed, Plaintiffs and Dickinson College shall also assign
a pseudonym or number to each student identified in Litigation-Related Student
Information which shall be used in place of the student's name in all correspondence
and Court filings.
14. Litigation-Related Student Information that is disclosed by Dickinson
College shall not be revealed or released to any person or persons, other than the Court
and Court personnel; stenographers and typists recording or transcribing testimony; the
parties; the parties' employees, officers, and directors; the parties' attorneys and
paralegals, clerical or support personnel; and the parties' experts.
15. Within sixty (60) days of the final resolution of the Litigation, including any
appeals, counsel for Plaintiffs, shall, within sixty (60) days, destroy (and certify, in
writing to Dickinson College, such destruction) or return to counsel for Dickinson
College all documents containing Litigation-Related Student Information possessed by
-4-
Plaintiffs, Plaintiffs' counsel, or Plaintiffs' experts. Plaintiffs' counsel shall not retain and
shall not permit any person to retain any copies of any documents that contain
Litigation-Related Student Information.
16. If any dispute arises regarding the disclosure or treatment of Litigation-
Related Student Information, Plaintiffs and Dickinson College agree to confer in good
faith in an effort to resolve any such disputes and agree that any disputed Litigation-
Related Student Information may be withheld from disclosure until such dispute is
resolved by mutual agreement or by the Court.
Discovery and Protective Order
17. Plaintiffs and Dickinson College desire that the Court enter an order that
incorporates the terms of this stipulation and includes the provisions necessary to allow
the Litigation-Related Student Information to be disclosed by Dickinson College in
compliance with FERPA.
18. To that end, Plaintiffs and Dickinson College agree to the entry of the
Discovery and Protective Order that is attached hereto as Exhibit A.
McNEES WALLACE & NURICK LLC
Elizabeth A/Maguschak
Kimberly A. elemba
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
MANLEY BURKE, P.C.
By rMoi ter' `1
Ti y M. B
aniel J. arthy
225 W st Court Street
Cincinnati, OH 45202-1098
(513) 721-5525
-5-
Dana Scaduto
General Counsel Dickinson College
West College Building
P.O. Box 1773
College & Louther Streets
Carlisle, PA 17013
(717) 245-1146
Dated: September f'2006
SWARTZ CAMPBELL, LLC
By (F I-V CA,vgilAw
Kevin Canavan
1601 Market St., 34th Floor
Philadelphia, PA 19103
(215) 564-5190
D(-'7--V6)
-6-
EXHIBIT A
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
JOSHUA R. ERHARDT, MICHAEL
CIATTO, JEREMY LYON, PATRICK CIVIL ACTION
SHEAHAN, ALEX WHITNEY, and
OMICRON CHAPTER OF SIGMA CHI No. 2006-2647
FRATERNITY,
Plaintiffs
V.
DICKINSON COLLEGE,
Defendant
DISCOVERY AND PROTECTIVE ORDER
WHEREAS, in order to provide for the full and fair litigation of the claims raised in
this case, certain information protected by the Family Educational Rights and Privacy
Act, 20 U.S.C. § 1232, and the regulations promulgated thereunder, 34 C.F.R., Ch. 99,
("FERPA") must be disclosed, the Court, upon Joint Stipulation of the Parties, enters
this Discovery and Protective Order:
1. All terms appearing in ALL CAPS in this order shall have the definition
provided to them by FERPA.
2. Subject to the requirements of paragraphs 3 through 6 below, Dickinson
College is hereby ordered to disclose, for purposes of this proceeding, any Litigation-
Related Student Information that is requested in the course of discovery and any
Litigation-Related Student Information that is relevant to Dickinson College's defenses
to the claims asserted.
3. The term "Litigation-Related Student Information" shall include the
following information:
a) all EDUCATION RECORDS of any Dickinson College student,
other than an individual plaintiff, who was a member of the Chapter
at any time from the 2000-2001 academic year to the present,
including without limitation, PERSONALLY IDENTIFIABLE
INFORMATION, transcripts, grade reports, incident reports,
disciplinary reports, and e-mail correspondence; and
b) any other PERSONALLY IDENTIFIABLE INFORMATION or
EDUCATION RECORD of any Dickinson College student, other
than an individual plaintiff, that is requested in the course of
discovery by Plaintiffs or that is relevant to Dickinson College's
defenses to the claims asserted in the Litigation, including without
limitation, transcripts, grade reports, incident reports, disciplinary
reports, and e-mail correspondence.
4. The term "Litigation-Related Student Information" does NOT include the
identity of any student who was the victim of any CRIME OF VIOLENCE OR NON-
FORCIBLE SEX OFFENSE, and this Order does not require Dickinson College to
disclose that information. If any party believes that such information is relevant to this
case, the party may petition the Court for an order requiring the disclosure of that
information.
-9-
5. Prior to disclosing any Litigation-Related Student Information, Dickinson
College shall issue written notice by United States mail to each student (or the
parent/legal guardian of the student) whose protected information is sought to be
disclosed. Such notice shall be issued within five days after Dickinson College has
determined that the disclosure of the student(s)' protected information is necessary.
The notice shall provide a general description of the student's protected information that
is proposed to be disclosed and shall state that;
a. within ten (10) days of receipt of the notice, the student or parent/legal
guardian may object to the disclosure of the information in whole or in
part;
b. the objection shall be made to the Court in writing and shall state the basis
for the objection; and
c. failure to so object shall result in the disclosure of the student's protected
information.
6. Upon receipt of any objection to the release of a student's protected
information, the Court shall notify the parties of the same and conduct an in camera
review of the records to determine what information, if any, is relevant and useful in the
litigation. If no objection is received, or if the Court, upon considering any objection,
orders the disclosure of any information, such information shall be disclosed within five
days.
-10-
7. Plaintiffs and Dickinson College are directed to take all reasonable steps
to prevent Litigation-Related Student Information from being disclosed to the public or
made a part of any public record.
8. Plaintiffs and Dickinson College are directed to assign a pseudonym or
number to each student identified in Litigation-Related Student Information that shall be
used in place of the student's name in all correspondence and Court filings.
9. All Litigation-Related Student Information disclosed pursuant to this Order
shall not be revealed or released to any person or persons, other than the Court and
Court personnel; stenographers and typists recording or transcribing testimony; the
parties; the parties' employees, officers, and directors; and the parties' attorneys and
paralegals, clerical or support personnel.
10. Within sixty (60) days of the final resolution of the Litigation, including any
appeals, counsel for Plaintiffs, shall, within sixty (60) days, destroy (and certify, in
writing to the producing party, such destruction) or return to counsel for the producing
party all documents containing Litigation-Related Student Information possessed by
Plaintiffs, Plaintiffs' counsel, or Plaintiffs experts. Plaintiffs' counsel shall not retain or
permit any other person to retain, any copies of any documents containing Litigation-
Related Student Information.
11. If any disputes arise regarding the disclosure or treatment of Litigation-
Related Student Information, Plaintiffs and Dickinson College are directed to confer in
good faith in an effort to resolve any such disputes and to abstain from releasing any
- 11 -
Litigation-Related Student Information until such dispute is resolved by mutual
agreement or by the Court.
12. The Court also notes that Plaintiffs have consented, through their
attorneys of record, to the disclosure by Dickinson College of Plaintiffs' Education
Information for purposes of this Litigation.
SO ORDERED.
J.
-12-
("'; rv
? 1
?_. ? ?r7
_ '^
z
CJ
-?. aM?
..
cD
I
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
JOSHUA R. ERHARDT, MICHAEL
CIATTO, JEREMY LYON, PATRICK CIVIL ACTION
SHEAHAN, ALEX WHITNEY, and
OMICRON CHAPTER OF SIGMA CHI No. 2006-2647
FRATERNITY,
Plaintiffs
V.
DICKINSON COLLEGE,
Defendant
DISCOVERY AND PROTECTIVE ORDER
WHEREAS, in order to provide for the full and fair litigation of the claims raised in
this case, certain information protected by the Family Educational Rights and Privacy
Act, 20 U.S.C. § 1232, and the regulations promulgated thereunder, 34 C.F.R., Ch. 99,
("FERPA") must be disclosed, the Court, upon Joint Stipulation of the Parties, enters
this Discovery and Protective Order:
1. All terms appearing in ALL CAPS in this order shall have the definition
provided to them by FERPA.
2. Subject to the requirements of paragraphs 3 through 6 below, Dickinson
College is hereby ordered to disclose, for purposes of this proceeding, any Litigation-
Related Student Information that is requested in the course of discovery and any
Litigation-Related Student Information that is relevant to Dickinson College's defenses
to the claims asserted.
r
3. The term "Litigation-Related Student Information" shall include the
following information:
a) all EDUCATION RECORDS of any Dickinson College student,
other than an individual plaintiff, who was a member of the Chapter
at any time from the 2000-2001 academic year to the present,
including without limitation, PERSONALLY IDENTIFIABLE
INFORMATION, transcripts, grade reports, incident reports,
disciplinary reports, and e-mail correspondence; and
b) any other PERSONALLY IDENTIFIABLE INFORMATION or
EDUCATION RECORD of any Dickinson College student, other
than an individual plaintiff, that is requested in the course of
discovery by Plaintiffs or that is relevant to Dickinson College's
defenses to the claims asserted in the Litigation, including without
limitation, transcripts, grade reports, incident reports, disciplinary
reports, and e-mail correspondence.
4. The term "Litigation-Related Student Information" does NOT include the
identity of any student who was the victim of any CRIME OF VIOLENCE OR NOW
FORCIBLE SEX OFFENSE, and this Order does not require Dickinson College to
disclose that information. If any party believes that such information is relevant to this
case, the party may petition the Court for an order requiring the disclosure of that
information.
-9-
5. Prior to disclosing any Litigation-Related Student Information, Dickinson
College shall issue written notice by United States mail to each student (or the
parent/legal guardian of the student) whose protected information is sought to be
disclosed. Such notice shall be issued within five days after Dickinson College has
determined that the disclosure of the student(s)' protected information is necessary.
The notice shall provide a general description of the student's protected information that
is proposed to be disclosed and shall state that;
a. within ten (10) days of receipt of the notice, the student or parent/legal
guardian may object to the disclosure of the information in whole or in
part;
b. the objection shall be made to the Court in writing and shall state the basis
for the objection; and
c. failure to so object shall result in the disclosure of the student's protected
information.
6. Upon receipt of any objection to the release of a student's protected
information, the Court shall notify the parties of the same and conduct an in camera
review of the records to determine what information, if any, is relevant and useful in the
litigation. If no objection is received, or if the Court, upon considering any objection,
orders the disclosure of any information, such information shall be disclosed within five
days.
-10-
7. Plaintiffs and Dickinson College are directed to take all reasonable steps
to prevent Litigation-Related Student Information from being disclosed to the public or
made a part of any public record.
8. Plaintiffs and Dickinson College are directed to assign a pseudonym or
number to each student identified in Litigation-Related Student Information that shall be
used in place of the student's name in all correspondence and Court filings.
9. All Litigation-Related Student Information disclosed pursuant to this Order
shall not be revealed or released to any person or persons, other than the Court and
Court personnel; stenographers and typists recording or transcribing testimony; the
parties; the parties' employees, officers, and directors; and the parties' attorneys and
paralegals, clerical or support personnel.
10. Within sixty (60) days of the final resolution of the Litigation, including any
appeals, counsel for Plaintiffs, shall, within sixty (60) days, destroy (and certify, in
writing to the producing party, such destruction) or return to counsel for the producing
party all documents containing Litigation-Related Student Information possessed by
Plaintiffs, Plaintiffs' counsel, or Plaintiffs experts. Plaintiffs' counsel shall not retain or
permit any other person to retain, any copies of any documents containing Litigation-
Related Student Information.
11. If any disputes arise regarding the disclosure or treatment of Litigation-
Related Student Information, Plaintiffs and Dickinson College are directed to confer in
good faith in an effort to resolve any such disputes and to abstain from releasing any
- 11 -
Litigation-Related Student Information until such dispute is resolved by mutual
agreement or by the Court.
12. The Court also notes that Plaintiffs have consented, through their
attorneys of record, to the disclosure by Dickinson College of Plaintiffs' Education
Information for purposes of this Litigation.
SO ORDERED.
NA /
J.
-12-
A .
JOSHUA R. ERHARDT, MICHAEL IN THE COURT OF COMMON PLEAS OF
CIATTO, JEREMY LYON, PATRICK CUMBERLAND COUNTY, PENNSYLVANIA
SHEAHAN, ALEX WHITNEY, and
OMICRON CHAPTER OF SIGMA CHI:
FRATERNITY, :
Plaintiffs,
V.
DICKINSON COLLEGE,
Defendant. NO. 06-2647 CIVIL
IN RE: MOTION FOR PRELIMINARY INJUNCTION
ORDER OF COURT
AND NOW, this 17th day of January, 2007, the petition of Plaintiffs for a
preliminary injunction is DENIED.
BY THE COURT,
- N -? 43?'-
M.L. Ebert, Jr., Judge
/mothy M. Burke
Daniel J. McCarthy
Manley Burke
225 West Court Street
Cincinnati, OH 45202-1098
Attorneys for Plaintiffs 14
fyi s°?.r ': $,.i t L i IiV1 LG'R,
Kevin Canavan
Thomas Ollason
Swartz Campbell LLC
1601 Market Street, Floor 34
Philadelphia, PA 19103
Attorneys for Plaintiffs
Elizabeth A. Maguschak
Kimberly M. Colonna
Kimberly A. Selemba
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorneys for Defendant
Dana Scaduto
Dickinson College
West College Building
P.O. Box 1773
College & Louther Streets
Carlisle, PA 17013
General Counsel for Defendant
JOSHUA R. ERHARDT, MICHAEL
CIATTO, JEREMY LYON, PATRICK
SHEAHAN, ALEX WHITNEY, and
OMICRON CHAPTER OF SIGMA CHI :
FRATERNITY,
Plaintiffs,
V.
DICKINSON COLLEGE,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 06-2647 CIVIL
IN RE: MOTION FOR PRELIMINARY INJUNCTION
OPINION and ORDER OF COURT
EBERT, J., January 17, 2007:--
Plaintiffs Joshua R. Erhardt, Michael Ciatto, Patrick Sheahan and Alex Whitney
("student Plaintiffs") are students of the Defendant Dickinson College ("Dickinson").
They are also members of the Omicron Chapter of Plaintiff Sigma Chi Fraternity ("the
Chapter"), which is comprised only of Dickinson students. Plaintiff Jeremy Lyon was
also a member of the Chapter but graduated from Dickinson College in May 2006. The
Chapter was expelled from Dickinson in 2004 and, in February 2006, Dickinson adopted
a policy prohibiting membership in an unrecognized fraternity but declined to extend the
policy retroactively to those who were already members.
On August 18, 2006, Plaintiffs filed a Motion for Preliminary Injunction to enjoin
the enforcement of the policy. Following a hearing held on September 15, 2006, and the
submission of briefs by both parties, the Motion will be denied for the reasons set forth in
this opinion.
FINDINGS OF FACT
Dickinson is a private, liberal arts college with the stated mission of preparing
students, "through education in the liberal arts and science, for engaged lives of
citizenship and leadership in the service of society."1 This includes an academic program
and a residential program for Dickinson's approximately 2000 students. As part of the
residential program, Dickinson regulates the students' residential experiences, including
the recognition of various student organizations in which students may choose to
participate. Included in these recognized organizations are six fraternities and four
sororities, which the College views as an integral part of its residential educational
program. A recognized group is a group that is in "good standing" and which works
"with the college, within the college's parameters, within our rules that help [Dickinson]
achieve [its] educational aims."2
Dickinson's Student Handbook is distributed to all students at the beginning of the
academic year and applies to all students for that year. Dickinson retains the right to
modify the regulations in the Student Handbook and those changes also apply to all
students.
The Student Handbook for the 2005-2006 academic year includes the following
provision, in pertinent part:
Student Rights and Responsibilities
College students are both members of the academic community and
citizens. As citizens, students enjoy the same freedom of speech, peaceable
assembly, and right of petition that other citizens enjoy. The College shall
1 Defendant's Exhibit 3, p. 4.
2 Transcript from Hearing held on September 15, 2006, p. 148-49 (hereinafter "N.T. at
2
not inhibit such intellectual and personal development of students as may
be prompted by their exercise of these rights both on and off campus.
College authority shall never be used merely to duplicate the function of
civil laws; only where the College community's pursuit of its educational
objectives is distinct, and clearly involved, shall its special authority be
asserted.
The College shall clarify those general standards of behavior which it
considers essential to its educational objective and its community life.
These general behavioral expectations and the resultant specific regulations
shall represent a reasonable regulation of student conduct in areas which
have persuasive relevance to the educational aim of the College.3
The student Plaintiffs recognized and understood that this portion of the Student
Handbook permitted Dickinson to adopt specific regulations regarding student behavior.4
In fact, Dickinson regularly alters its rules and regulations to best serve its educational
and residential mission, and this ability to modify regulations is important to Dickinson's
mission.' In pursuit of its educational mission, Dickinson imposes regulations governing
where students live, with whom they may live, and when and under what circumstances
they may join fraternities. This includes the imposition of a specific period of time, the
spring semester of freshman year, during which recognized fraternities may solicit new
freshman members. Those seeking fraternity membership must also have a GPA of at
least 2.25.' In addition to the broad purpose of achieving its educational and residential
mission, Dickinson's interests in regulating student conduct in unrecognized
organizations include preventing the recruitment process from interfering with
3 Plaintiff's Exhibit "C", Dickinson Student Handbook p. 63.
4 N.T. at 165.
s N.T. at 106-111, 160.
6 N.T. at 68-70, 171, 175-176, 126, 128.
N.T. at 171, 128.
3
academics, preventing student behavior from disrupting the Carlisle community, and
minimizing the risks associated with negative behaviors that exist in fraternities, such as
binge drinking, underage parties, and underage drinking.8
The Omicron Chapter of the international Sigma Chi fraternity was a recognized
fraternity hosted by Dickinson until the fall of 2004. Pursuant to the Chapter's rules,
only Dickinson students are eligible for full membership in the Chapter'9 After the
Chapter repeatedly violated disciplinary rules, Dickinson asked the Chapter to voluntarily
terminate its activities, retaining the ability to apply for reorganization in the future. The
Chapter declined to terminate voluntarily and was expelled from Dickinson by a hearing
board consisting of two faculty members, two students, and a chairperson. 10
Following expulsion, the Chapter continued to operate off-campus by recruiting
new members, holding meetings, and engaging in social activities that included students
from the Dickinson College community. Because the Chapter's recruitment was no
longer regulated by Dickinson, it is able to extend membership bids to new Dickinson
students before recognized fraternities are able to begin the recruitment process.I I At the
time of expulsion of the Chapter, Dickinson's policy was that as long as the Chapter did
not cause a disruption on campus, Dickinson would take no action against it or its
members. 12 Before this situation, Dickinson had not dealt with an unrecognized
a N.T. at 120-122, 192.
9 N.T. at 83.
10 N.T. at 152, 7, 50.
" N.T. at 33-34, 172-176
12 N.T. 153, 187.
4
organization which consisted solely of Dickinson students operating off-campus. 1 3 In
January, 2006, councils comprised of members from each of the recognized fraternities
and sororities voiced complaints about the Chapter's being able to operate without
regulation from Dickinson, including its ability to recruit year-round, and adopted two
resolutions stating the councils' commitment to Dickinson's educational mission and
condemning the unregulated operation of the Chapter. In consideration of these
resolutions, Dickinson issued an official policy prohibiting membership in unrecognized
fraternities or sororities. 14 This new policy was sent via email to all current students, and
mailed to parents and students of the class of 2009, who were eligible to consider
fraternity membership. 15
On February 6, 2006, Dickinson issued a notice to members of the Chapter
indicating that the policy would not be enforced retroactively - that is, those who had
become members of the Chapter before February, 2006, were not subject to discipline
unless they participated in recruiting new members; but that in keeping with the policy
any student who joined an unrecognized fraternity would be suspended or expelled. A
notice concerning the modified policy was placed in the 2006-2007 Student Handbook.
In addition to the concerns of the recognized fraternities and sororities, Dickinson
expressed concern that the operation of unregulated organizations would be dangerous
because of the risks associated with binge-drinking, underage parties and underage
drinking. This would render Dickinson less able to partner with the Carlisle Borough
13 N.T. at 151.
14 Defendant's Exhibits 5, 7, 8, N.T. 157-159
15 N.T. at 157-160.
Police to deal with problematic student behavior. Additionally, Dickinson expressed the
concern that if it cannot regulate unrecognized fraternities, the rest of the (now regulated)
Greek system would be much less motivated to follow Dickinson's rules and
regulations. 16
DISCUSSION
There are six "essential prerequisites" that a party must establish prior to obtaining
preliminary injunctive relief. The party must show: (1) that the injunction is necessary to
prevent immediate and irreparable harm that cannot be adequately compensated by
damages; (2) that greater injury would result from refusing an injunction than from
granting it; (3) that a preliminary injunction will properly restore the parties to their status
as it existed immediately prior to the alleged wrongful conduct; (4) that the activity it
seeks to restrain is actionable, that the right to relief is clear, and that the wrong is
manifest, or, in other words must show that it is likely to prevail on the merits; (5) that
the injunction it seeks is reasonably suited to abate the offending activity; and (6) that a
preliminary injunction will not adversely affect the public interest. Warehime v.
Warehime, 860 A.2d 41 (Pa. 2004). These prerequisites are cumulative, and relief may
not be granted if one element is lacking. Norristown Municipal Waste Auth. v. West
Norriton Twp. Municipal Auth., 705 A.2d 509, 512 (Pa. Commw. 1998). The burden is
on the party who requested preliminary injunctive relief. Warehime, 860 A.2d 41.
16 N.T. at 173.
6
Failure to Demonstrate Clear Right to Relief
As the Superior Court has explained, "unless the plaintiff's right to relief is clear
and the wrong is manifest, a preliminary injunction will generally not be awarded." All-
Pak, Inc. v. Johnson, 694 A.2d 347, 350 (Pa. Super. 1997).
In applying these principles to the present case, one cannot ignore the history
between Dickinson and the Chapter which has lead to the current crisis. The Chapter, its
parent organization, Sigma Chi Fraternity, and even the student plaintiffs have not
contested the fact that Omicron Chapter's former members' failure to comply with
Dickinson College's rules led to the total expulsion of their Fraternity from campus. The
Plaintiffs attempt to distinguish their problems with the College into two categories. One
category being "disciplinary issues". The second category being fraternity recruiting
violations for admitting members after the College approved period for such admissions
was closed. This attempted distinction is without merit. The bottom line is that Omicron
Chapter continually violated Dickinson's rules, and it voluntarily chose to turn down
Dickinson's offer of suspension which resulted in its being expelled from the campus.
In the present case, Plaintiffs' request for relief is based on their assertion that the
College breached its contract with the student Plaintiffs by violating their freedom of
association.' The facts presented at the hearing and the law governing the relationship
between private colleges and their students fail to indicate that Plaintiffs have a clear
17 For purposes of their motion for preliminary injunction, Plaintiffs relied only upon Count I of their Complaint,
which excludes the Chapter and Plaintiff Jeremy Lyons, who graduated from Dickinson College in May 2006, who
have no standing to assert this claim.
7
right to relief. As such the Plaintiffs have failed to demonstrate that they have a
likelihood of prevailing on the merits, which is an integral part of showing a clear right to
relief.
In Schulman v. Franklin & Marshall College, 538 A.2d 49 (1988), a student was
suspended after being found guilty of misconduct directed to female students. The trial
court refused to grant a preliminary injunction to enjoin the suspension, and the Superior
Court affirmed, stating: "The courts have been very reluctant to interfere with college
proceedings concerning internal discipline. A college is a unique institution which, to the
degree possible, must be self-governing and the courts should not become involved in
that process unless the process has been found to be biased, prejudicial or lacking in due
process." Id. The Court went on to note that while others may apply different standards
than those applied by a private college, by the very nature and composition of a private
college it will reflect different standards and attitudes concerning student misbehavior,
and that frequently, colleges are chosen by parents and students because of the special
quality of life that distinguishes it from other institutions. Id.
Plaintiffs argue that Dickinson contracted with its students to provide them with
the same associational rights that other citizens enjoy, and failed to properly modify these
contractual guarantees of First Amendment rights. Not only have courts recognized that
a college is entitled to modify its rules and regulations in order to properly exercise its
educational responsibility, but Dickinson explicitly reserves the right to modify the
contract by declaring standards of behavior. The 2005-2006 Student Handbook states
that the College may adopt specific regulations regarding student behavior which it
considers "essential to its educational objective and its community life."
The plaintiff students failed to meet their burden of showing that Dickinson
improperly exercised its right to modify the contract with its students. When the Chapter
was first expelled from campus, Dickinson's policy was that it would take no action
against the Chapter or its members unless the Chapter caused a disruption on campus.18
At that time, Dickinson encouraged students to join only organizations that were
recognized and supported by the campus. 19 When the continued operation of the Chapter
began to disrupt the College's recognized Greek system, in response to resolutions filed
by the councils of all recognized fraternities and sororities, Dickinson took action to
regulate student conduct in furtherance of its educational mission, of which it considers
the recognized Greek system to be an integral part. 20 In response to the specific
interference to the campus community caused by an off-campus organization made up
exclusively of only Dickinson students, Dickinson College specifically acted to regulate
the behavior of its students in furtherance of its educational and community life
objectives. In addition to the disruption caused by the Chapter, Dickinson also argues
with merit that taking away its ability to regulate student behavior in this case threatens to
undermine its ability to regulate student behavior altogether - if students in off-campus,
unrecognized student organizations are not subject to Dickinson regulation and are
thereby at an advantage, the entire Greek system, as well as other organizations, could
" N.T. at 153, 187.
19 N.T. at 153.
20 N.T. at 101-102.
9
find it advantageous to give up recognition. Dickinson would then effectively lose the
ability to exercise its educational and disciplinary responsibility.
Pennsylvania courts have consistently afforded great deference to a private
college's disciplinary policies and decisions. Common sense and logic support this
approach. To grant the relief requested by the Plaintiffs rewards bad behavior. In
essence such a decision would promote the idea that when a student group breaks the
rules of the College and is expelled from campus, they will be rewarded by not only
continuing to exist in a manner almost identical to the way they did before expulsion, but
now they will have the added benefit of not being required to follow any of Dickinson
College's rules. The College's announced change of policy and restrictions were
designed to deal with this situation in a reasonable fashion. The current members of
Omicron Chapter continue to function as a social organization. Under the policy
promulgated by Dickinson in February 2006, the current members of Omicron Chapter
can associate with all students of Dickinson College, can hold social events and continue
their philanthropic activities. What they cannot do is recruit new members because the
Chapter repeatedly broke the rules of the College. Now, the College as a private entity is
entitled to fashion reasonable rules to control the mode and opportunity for association of
its students with Omicron Chapter of Sigma Chi as it is currently constituted. In this
case, the rules established by the College in February 2006 not only satisfied their
contractual obligations but were reasonable under the circumstances. See Psi Upsilon v.
University of Pennsylvania 591 A.2d 755 (Pa.Super. 1991). As stated by Judge Bayley in
10
Colletti v. Messiah 43 Cumb. 185 (1994) "[i]t is not for a court of equity to pass
judgment on the propriety of the standards set by the College."
In light of the deference afforded to a private college's disciplinary policies and
decisions, this Court refuses to read Dickinson's Student Handbook as contracting to
provide unconditional First Amendment rights of association to student groups,
especially in light of the express language to the contrary. Because the plaintiff students
were aware of the contract terms and failed to show that Dickinson improperly modified
these terms, the Plaintiffs' have failed to show that their right to relief is clear, and they
are thereby not entitled to a preliminary injunction.
ORDER OF COURT
AND NOW, this 17th day of January, 2007, the petition of Plaintiffs for a
preliminary injunction is DENIED.
BY THE COURT,
M.L. Ebert, Jr.,
Timothy M. Burke
Daniel J. McCarthy
Manley Burke
225 West Court Street
Cincinnati, OH 45202-1098
Attorneys for Plaintiffs
11
Kevin Canavan
Thomas Ollason
Swartz Campbell LLC
1601 Market Street, Floor 34
Philadelphia, PA 19103
Attorneys for Plaintiffs
Elizabeth A. Maguschak
Kimberly M. Colonna
Kimberly A. Selemba
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorneys for Defendant
Dana Scaduto
Dickinson College
West College Building
P.O. Box 1773
College & Louther Streets
Carlisle, PA 17013
General Counsel for Defendant
12
IN THE COURT OF COMMON PLEAS OF THE COMMONWEALTH OF PENNSYLVANIA
IN AND FOR CUMBERLAND COUNTY
JOSHUA R. ERHARDT, MICHAEL CIATTO, JEREMY
LYON, PATRICK SHEAHAN, ALEX WHITNEY, AND
OMICRON CHAPTER OF SIGMA CHI
PLAINTIFFS,
V.
DICKINSON COLLEGE
DEFENDANT.
CASE No.:06-2647
PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE
TO THE PROTHONOTARY:
Please mark the record in the above-captioned matter as "Discontinued Without Prejudice" upon
payment of your costs.
SWARTZ CAMPBELL LLC
ILIA, C04witIA
Kevin Canavan
Thomas Ollason
Swartz Campbell
Two Liberty Place
50 South 16' Street, 28th Floor
Philadelphia, PA 19102
Telephone: (215) 564-5190
Facsimile: (215) 299-4301
Email: kcanavan@swartzcampbell.com
Email: tollason@swartzcampbell.com
Counsel for Plaintiffs
Timothy M. Burke
Daniel J. McCarthy
MANLEY BURKE
A LEGAL PROFESSIONAL ASSOCIATION
225 West Court Street
Cincinnati, Ohio 45202
Telephone: (513) 721-5525
Facsimile: (513) 721-4268
Email: tburke@manleyburke.com
dmccarthy@manleyburke.com
17