If many observers are correct and implementation of the Board of Trustees' initiative leads to court battles between the College and Greek organizations refusing to sell their houses, the arguments are likely to focus on small number of legal issues.
While Greek members might argue the College is interfering with their First Amendment rights of assembly and association or that Dartmouth is violating anti-trust laws if it prevents students from registering who reside in certain houses, those arguments are difficult to prove since the College is a private institution.
Although there is certainly no guarantee the Trustees' controversial initiative will bring Dartmouth organizations into the courtroom, with no national precedent clearly existing in favor of either side, it is unclear how any case would be decided.
Privately-owned houses.
Despite significant discussion amongst the members of most organizations, the majority of houses have decided to wait until the Trustees make a more direct announcement of their intentions before seriously considering legal actions. At this stage, when the extent of enactment of the five principles has not been clearly defined, most have decided the expense of legal consulation is not yet worth it.
According to Psi Upsilon fraternity President Mike Rand '00, his organization might look to contact a lawyer in the near future -- but to serve as a legal advisor, not in a confrontational role.
Some of the houses have more independent relationships with the College than others, something which will be an important determinent of each houses ability to control its own destiny.
Of the 19 single-sex greek organizations that have houses on campus, 12 live in privately-owned residences.
All of the sororities with the exception of Alpha Xi Delta live in College-owned residences as do two of the fraternities -- Chi Heorot and Alpha Chi Alpha.
Eleven single-sex organizations own their own houses and property,.while Alpha Xi leases its house from the Beta Theta Pi corporation in a contract currently scheduled to last until June 2000 according to Alpha Xi sister Emily Csatari '99
Some of the houses said the Coed Fraternity and Sorority Council would likely provide a unified front if the idea of legal action were to be pursued.
Kappa Kappa Kappa President David Luckenbach '00 said, "If it came to some sort of legal action we'd have to band together."
Citing the various sets of interests represented by the houses, Rand said, "There might be a need to divide and conquer... I think once you step back from it a couple of houses are in a worse position."
Heorot President Sean Maduck '00 agreed, "We have a tougher fight than most houses."
Even the fraternity and sorority members living in privately-owned houses will have a tough fight.
If the College refuses to allow members to live in the houses -- as the administration of numerous other colleges have when attempting to influence the Greek system -- "the corporations could be forced into bancruptcy" acccording to Csatari.
Keeping the Beta house empty, the corporation would still have to pay a $12,000 annual real estate tax, and "that's a big suck," she said.
Right of refusal
Among many of the facilities adjactent to the campus, the College has a right of refusal -- meaning if the owners choose to sell the house and have a buyer, the owner must offer it to the College because they have the first right to refuse to buy the property.
"Its basically 'the first right of acceptance," Csatari said.
The College must pay the price of the highest bidder, but they can "cut in front" of any other interested parties.
Three of the 12 privately owned houses are subject to repurchasing options, according to College Sales and Leasing Manager Susan Weider.
The College has right of refusal over the Beta house, the house owned and occupied by Sigma Nu fraternity, as well as one other house.
Sigma Nu President Mark Kaplowitz '00 said that he believes "the College would have first dibs" on their fraternity house.
The Higher Education Act
The Higher Education Act of 1998 has been heralded as a savior of Greek institutions by many since the signing of an amendment proposed by Representative Bob Livingston.
Signed by President Bill Clinton on Oct. 7, 1998, the bill known as H.R. 6, added a section to the Higher Education Act for "The Protection of Student Speech and Association Rights."
The first clause defends the rights of students on college campuses by stating that "no part- or full-time student should be subject to discrimination or official sanction" because of participation in protected speech or protected association.
The bill further defines 'protected association' as the right of students to join, assemble and reside with others as is protected by the first and 14th Constitutional amendments.
"Official sanction" is also clarified in the bill -- defined as the "expulsion, suspension, probation, censure, condemnation, reprimand or any other disciplinary, coercive or adverse action taken by an institution of higher education ... and includes an oral or written warning made by an official of an institution of higher education."
The bill protects the right of students to assemble, meet and live with whomever they wish and not be subject to discrimination, suspension, or expulsion from the College or denied the rights granted to other students at the College.
A 'sense of Congress'
However, many experts believe the bill does not include any enforcable statutes, since it is a sense of Congress and not an actual law. For that reason, it is unlikely that institutions will be held accountable for not acting in accordance with the bill.
Administrators at Bowdoin -- to whose attention H.R. 6 was brought to by DKE Executive Director David Easlick, Jr. -- determined that as a 'sense of Congress' the Bill H.R. 6 has no enforceable statutes, according to the Bowdoin Orient.
The wording "it is the Sense of Congress that no student ..." prevents the interpretation of the Bill as law.
Williams, Middlebury and Colby were also contacted by DKE national fraternity because all three in recent years have eliminated fraternities on their campuses. None of the four colleges addressed by the fraternity changed their outlook on their fraternity positions.
Anti-Trust Suits
Anti-trust was the venue attempted by four Hamilton College fraternities in 1995 when the Hamilton administration announced that all students would have to eat, meet and sleep in college-owned facilities. Fraternities could continue to exist but would have to move into dormitories.
Claiming an anti-trust case against the College would require that the party bringing the suit be able to define the College as a market and show that the College has a monopoly on the students.
When Hamilton stated its intention to buy the privately-owned houses and turn them into residential spaces, three of the seven fraternities decided to sell out-right, but four of the houses -- Psi Upsilon, Alpha Delta Phi, Delta Kappa Epsilon and Sigma Phi Delta -- joined together to sue the college, Psi Upsilon Alumni President John Becker said.
To their advantage, all four fraternities had the support of their national organizations.
The Psi U lawyer, Hamilton and Psi U alumnus Frank O'Brian, who specialized in Anti-trust, freedom of speech and freedom of association cases, cited the situation at Middlebury where the fraternities failed in their efforts to rely on freedom of speech and association to defend their cases.
"We weren't going to go anywhere with that," Becker said. O'Brian suggested that they try a wrinkle that hadn't been tried yet -- an anti-trust case.
Becker said the four houses put together a strong case. They were able to prove that the college denied them the ability to compete financially and that Hamilton intended to do them economic harm by forcing the students out of the fraternity houses.
The problem was that the judge dismissed the case without bringing it to trial by deciding that Hamilton was not the type of market implied in the Sherman Anti-Trust Act.
The four houses decided to appeal -- the appelate court decided unanimously in favor of the fraternities.
"There was no disputing the facts, the point was whether it's a legimate anti-trust case," Becker said.
The months of preparations and delays of judicial action by the College left the houses empty and slowing deterioriating and with finances running low.
"The college was starving us out," Becker said. "They hardlined this thing right from the first minute."
After winning the appeal, Psi U and two of the remaining houses involved in the lawsuit decided to settle. Psi U was already $200,000 in debt and alumni support dried up, Becker said. Only Sigma Phi fraternity retains a hold on their house.
Had they continued to pursue the case and won the anti-trust lawsuit, the defendents would have repaid them triple the damages plus legal fees, Becker said. "We would have been financially whole."
"The college has enormous power," Becker lamented. "It's a private college. They can make their own laws, can do whatever the heck they want to."
The primary reason for settling with the college, Becker said, was that in the long run, the college would have won out.
"We could have won the battle, but lost the war."
Private versus public
As a private organization the rights of a privately-owned college are protected under the Constitution like any other organization.
According to Attorney Philip Burling in a letter opposing H.R. 6, the drafters of the Bill ignored the constitutional right for a private institution to have its own point of view.
"The great beauty of the Constitution is that it provides for both independent educational institutions and state educational institutions; thus, while government-based institutions cannot have exclusive points of view," the right of private institutions to limit themselves to particular doctrines and philosophies is protected.
Public institutions, because they receive money from the state, are not protected by the first amendment, but private institutions have rights of their own -- to govern themselves as they see fit.
"The fundamental liberty of an individual is protected," Attorney Mark Furlan said, "but the problem is that Dartmouth College is a private institution unless Dartmouth gets a substantial amount of money from the government."
The College does receive money from the government, but there is no defined amount of aid which would shift the College from private to public status.
If the College can make the distinction that it has the powers of a private institution, a freedom of association or freedom of speech suit would have no standing.
Further, the right to live in single-sex houses has not been defined to fall under the right of freedom of association. According to Burling, the Supreme Court, inVillage of Belle Terre v. Boras 416 US 1(1974), decided that the First Amendment did not cover the right of unrelated persons to live together in fraternity-type residences.
