DKE’d Over…



Colgate won an initial victory in the case of Delta Kappa Epsilon’s (DKE) lawsuit against the University last month. On March 10, legal representation from both Colgate and DKE met in the James T. Foley Courthouse in Albany for a preliminary hearing. In the end, presiding U.S. District Court Judge Gary L. Sharpe rejected DKE’s request for a preliminary injunction and temporary restraining order (TRO).

According to the Colgate website, the injunction and restraining order, “…would have blocked Colgate University from requiring, among other conditions, that Colgate own the DKE house before students could reside there and be recognized as a fraternity beginning fall of 2005.”

The DKE fraternity first filed its official complaint on February 28. The lawsuit argues the illegality of Colgate’s stipulation that DKE sell their property to the University before the 2005 academic year. Citing the Sherman Act Anti-Trust Laws, the Freedom of Speech and Association Campus Act of 1997 and the First Amendment of the U.S. constitution, DKE hopes to prevent the “forced” sale of their chapter house and temple.

The only active Greek house that has not agreed to sell, the Mu chapter of DKE hired Colgate chapter alumnus Thomas J. Wiencek of the Brouse-McDowell Law Firm to represent them.

“The plaintiffs moved for a preliminary injunction on key aspects of residential life,” Ed Conan, representing Colgate on behalf of Bond, Shoeneck, King Law Firm, said.

Such an injunction would have temporarily frozen Colgate’s movement against the house. The awarding of such an order, however, requires that “a plaintiff must establish (1) irreparable harm and (2) either (a) a likelihood of success on the merits or (b) a sufficiently serious question going to the merits and a balance of hardships tipping decidedly in the moving party’s favor.” In other words, the injunction would only be awarded if there was a ‘likelihood of success’ based on the claims in the case.

“Judge Sharpe opposed the matter,” Conan said, “on the grounds that their claims lacked merit.”

Much of the judge’s reasoning went back to what Conan calls a “parallel case” at Hamilton College in 2000.

In the mid-1990s, Hamilton College underwent similar residential restructuring in which the Greek organizations were forced to sell their private houses to the college. The DKE chapter at Hamilton sued, but had their case permanently dismissed in 2000. The anti-trust decision in that case rejected almost identical anti-trust claims in the Colgate case.

Regarding the first amendment issue, Colgate was found innocent of any breach because it is a private institution, not a state actor.

“I think this ruling exposes what is fundamental about this case,” Conan, who praised the decision, said.

For Colgate, it was a predictable victory, but both parties are making it clear that the fight is far from over.

“This ruling has no reflection on the actual merits of the case,” DKE attorney Thomas Wiencek said. “What the court said was that, because of Anti-Trust law, we could receive damages rather than a TRO. I have two reactions to the ruling. First, the denial of the restraining order was done because other damages are available – that I’m not critical of. Second, the judge said the anti-trust argument is not valid because it deals with a local economy. To that extent, I think he’s flat out wrong.”

Despite some disappointment, DKE is looking at the decision as little more than a tiny bump in the road.

“This was a very preliminary motion,” junior DKE President Sam Higgins said. “By no means is the lawsuit over. It hasn’t even started yet.”

The lawsuit is indeed still very much alive. In fact, it has not yet been officially ‘answered’. Colgate has until April 12 to either answer DKE’s complaint or make a motion to dismiss.

Wiencek predicts an active response, beginning with depositions by the end of June.

“I expect the University to respond with an answer,” he said. “They have some leverage as a result of the [March 10] decision. If they file a motion to dismiss now, they will put that leverage at risk. I think we can defeat a motion to dismiss.”

The lawsuit stands to stretch into the summer and beyond. Whatever the outcome of the case in coming months, no one can deny the somewhat precarious position in which the DKE brothers stand.

“We think the situation is unfortunate for the DKE undergraduates,” Dean of the College Adam Weinberg said. He explained that the brothers, who may find themselves without a house this fall, went through housing selection with the rest of the student body.

“We’re the oldest fraternity on the row,” Higgins said, “and we’ve dealt with setbacks before.”