Greek Scales of Justice

Mark Fuller

As the Greek saga continues, Colgate University is once again calling upon its legal defense. Delta Kappa Epsilon (DKE) launched a lawsuit last spring in an effort to prevent the chapter house acquisition. Now, Colgate is faced with two new lawsuits filed by groups of alumni from the Phi Delta Theta (Phi Delt) and Beta Theta Pi (Beta) fraternities.

The latest suits are of a different breed, however. Not issued by the undergraduate brotherhoods or alumni organizations (as in DKE’s case), the Beta and Phi Delt suits are “derivative lawsuits,” meaning that they were filed by a small percentage of alumni on behalf of the Alumni Corporations. Under New York State law, a derivative lawsuit may be submitted by a group consisting of five percent of a corporation’s shareholders. The group can file the suit on behalf of the corporation if they believe the Board of Directors has violated either its “duty of care” or “duty of loyalty”. It is important to remember that the cases have not been brought by the Alumni Boards or undergraduate chapters themselves.

The arguments of the two suits are nearly identical. The plaintiffs in both cases seek the reversal of the house sales, which occurred last spring. They maintain that the decision to sell was made only in the face of coercive conditions established by the University. The Phi Delt suit accuses Colgate of “wrongful threats,” “unequal bargaining power” and “one-sided contract terms” in the sale negotiation process. According to the plaintiffs, the unfair terms established by Colgate tied the hands of the Beta and Phi DeltaAlumni Boards, forcing them to acquiesce to the sale.

Both fraternities voted last spring to sell their property to Colgate in compliance with the University’s requirement that all students, including Greek members, live in University-owned housing (except for the approximately 250 seniors traditionally given permission to live off-campus each year). Colgate’s New Vision for Residential Education, released in the summer of 2003, stipulated that any Greek organization not existing on Colgate-owned property by fall 2005 would lose recognition. After the decision was made to sell, certain alumni members of the Beta and Phi Delt houses wrote letters to their Boards asking for legal action against Colgate.

“There has been a lot of debate, both formal and informal,” Beta Alumni President Eric Will said. “But we, as a Board, voted not to take legal action.”

The same occurred with Phi Delt.

“A small group drew up a lawsuit and gave it to the Phi Delt Board,” Secretary of the College Kim Waldron said. “The Board considered the request and then said ‘No’.”

Given the final no by the Alumni Board, a group of about 85 Phi Delt Alums pursued their independent suit. Led by Students and Alumni for Colgate (SA4C) President Tim Sanford, the plaintiffs issued their “derivative lawsuit” on July 20. Although filed in July, the first action taken on the Phi Delt case was at a hearing on Friday, November 4.

“We don’t think they have legal standing,” Waldron said. “We made a motion to dismiss on the Phi Delt case. We expect that the judge will make his decision within the next few months.”

Colgate’s motion to dismiss argues that the suit has no merit because the “plaintiff’s counsel expressly acknowledged that the Phi Delt Board did not breach the duty of loyalty or the duty of care.”

The argument holds that the plaintiffs have misinterpreted the grounds on which they could submit a derivative lawsuit, and that the case should therefore be dismissed.

“In the Phi Delt case, Colgate offered a motion to dismiss the charges. The judge has ‘reserved judgment.’ We take this as a good sign that he did not agree with Colgate and wants to consider the matter further. He knows this has become a high profile case; Colgate had a large contingent present for the hearing,” a recent entry by the pro-plaintiff creators of said.

The case has therefore become a waiting game.

The judges’ ruling is expected sooner rather than later, however, and no one is listening more carefully than the Beta plaintiffs, who filed their own suit October 19.

“The two cases are extremely similar,” Waldron said. “Almost identical. So in Beta’s case they’ve agreed to wait for the Phi Delt decision.”

Sanford, lead plaintiff in the Phi Delt lawsuit, explained his frustration with the university’s actions.

“This all started when I got the 16-page pamphlet about the ‘New Vision’ in July of 2003,” he said. “My reaction was that it was nuts. Anyone can see that the acquisition is the first step in getting rid of fraternities.”

Sanford described Colgate’s “gun to the head” bargaining method as a “dastardly approach,” adding that “It has alienated thousands of alumni.”

“The goal of the suit is to overturn the sale.,” he said. “I expect that if Beta and Phi Delt win, the others [Greek organizations] will follow.”

In an official statement, the Phi Delta Theta Board disagreed with the stance taken by Sanford and other plaintiffs.

“The Board believes that continued legal action by this group will be divisive and counter-productive for our fraternity,” the statement said. “We have held a membership vote on the sale of the house and it was approved by an overwhelming majority of the members. With a few notable exceptions, most of the plaintiffs graduated from Colgate over 40 years ago and have not been actively engaged with the undergraduate chapter or national fraternity in the last 10 years.”

In the same vein, Beta alumnus and house representative to the newly formed Fraternity and Sorority Alumni Initiative (FSAI) Tighe Sullivan spoke of the Beta plaintiffs as being overly resistant to change.

“A lot changed from the 50’s to the 80’s, and a lot has changed from the 80’s to today,” he said. “They’re just living in the past; they refuse to realize that things have changed.

Sullivan went on to emphasize the importance of alumni involvement and a resurrection of traditions and ideals as a way to ensure the future strength and success of the Colgate fraternity system.

This year DKE’s chapter house remains empty, its organization disbanded; but legal action from the Mu chapter is far from over. Recently the DKE undergraduate brotherhood filed a lawsuit of its own.

“The primary complaint is that, while all DKE undergraduates are now living in University-owned housing, as was the college’s requirement for controlling the chapters, DKE has been banned,” the website reports. “Colgate’s written policies do not specifically require the sale of private property to receive or retain recognition. Colgate must address the lawsuit by early December and an oral argument over the issue will likely occur in January ’06.”

Beyond the undergraduate suit, the Madison County District Attorney has been requested to investigate Colgate University on the grounds of “criminal coercion.”

This request marks a new approach by the DKE representatives. The most well-known case in this widening legal spectrum, that, issued by the DKE Alumni Corporation last spring, is now in what Waldron described as a “phase of discovery.”

DKE must answer Colgate in December and Colgate in turn must answer in January. If the trial continues it is expected to go to court in December of 2006.

Lawsuits against the University do little to tell the story on campus, however. As far as the acquisition status is concerned, life in Colgate’s newly-acquired Greek houses seems to be running quite smoothly.

“The ownership is going really well,” Director of Fraternity and Sorority Affairs Kelly Opipari said. “The students have been very cooperative.”

Beta Theta Pi President senior Saul Waller echoed that sentiment:

“Things are going really well for us right now,” he said. “The University staff we deal with – Kelly Opipari, Sue Smith, Res Life, the crew from Buildings & Grounds – have all been working really hard to ease the transition and to keep things around the house running smoothly. We still get to live in a mansion with 45 of our closest friends, we still get to host great social and philanthropy events (like Beta Beach and our silent auction fundraiser), and we still get to have the experience that we’ve always had. I wouldn’t trade that for anything, and certainly not for having our name on the top of a deed.”

Though a positive picture is drawn from those involved in the transition, reminders of the struggle take shape in the Beta, Phi Delt and DKE lawsuits, as well as in the ongoing Freedom of Association Coalition for Truth (F.A.C.T.) and SA4C campaigns.

Ultimately, Colgate’s attorneys will have their hands full for some time to come, a constant reminder that the Greek house acquisition is a controversy not yet put to bed.