Sigma Chi Fraternity v. Regents of University of Colorado

• Decision Date: 31 August 1966
• Docket Number: Civ. A. No. 9525.
• Citation: 258 F. Supp. 515
• Parties: SIGMA CHI FRATERNITY, a voluntary association, Sigma Chi Corporation, an Illinois corporation, Beta Mu Chapter of Sigma Chi, a voluntary association, and Beta Mu House Corporation, a Colorado corporation, Plaintiffs, v. The REGENTS OF the UNIVERSITY OF COLORADO, a corporation, Defendant.
• Court: U.S. District Court — District of Colorado

258 F. Supp. 515

SIGMA CHI FRATERNITY, a voluntary association, Sigma Chi Corporation, an Illinois corporation, Beta Mu Chapter of Sigma Chi, a voluntary association, and Beta Mu House Corporation, a Colorado corporation, Plaintiffs, v. The REGENTS OF the UNIVERSITY OF COLORADO, a corporation, Defendant.

Civ. A. No. 9525.

United States District Court D. Colorado.

August 31, 1966.

COPYRIGHT MATERIAL OMITTED

Winner, Berge, Martin & Camfield, Fred M. Winner, Denver, Colo., for plaintiffs.

Duke W. Dunbar, Atty. Gen., of State of Colorado, Raphael J. Moses, Asst. Atty. Gen., Boulder, Colo., for defendant.

Before BREITENSTEIN, Circuit Judge, and CHILSON and DOYLE, District Judges.

MEMORANDUM OPINION AND ORDER

DOYLE, District Judge.

This is an action in which the plaintiffs seek injunctive relief against the defendant, The Regents of the University of Colorado, primarily based on two actions of the defendant, a resolution which was passed in 1956 and an enforcement order directed to the defendant Beta Mu Chapter of Sigma Chi issued on May 29, 1965. A third but less important claim is based on a resolution adopted by the Regents in December, 1965. It is alleged that the Regents acted contrary to the Constitution and laws of the United States in the actions which they took. The 1965 enforcement action gave immediate rise to the present court action. On that occasion the regents adopted a resolution placing the Beta Mu Chapter of Sigma Chi on probation with loss of rushing and pledging privileges "until it can fully comply with the University policy resolution of March 19, 1956." This came about following receipt by the Regents of information that Sigma Chi had suspended its Stanford University chapter purportedly as a result of the pledging by that chapter of a Negro student. The complaint further alleges that Beta Mu chapter is affiliated with the international fraternity Sigma Chi, hereinafter referred to as the "national" organization; that it is required to abide by the rules of the national fraternity; that as an affiliated chapter it may pledge any person it wishes but that the national fraternity must approve a pledge in order for him to be initiated. Beta Mu House Corporation, an association of alumni of Beta Mu chapter, owns the chapter house at Boulder, Colorado.

In addition to injunctive relief, plaintiffs seek a declaratory judgment that "the actions of defendant complained of be declared to be in excess of defendant's jurisdiction, arbitrary and capricious, unconstitutional and void and of no force or effect." It is prayed that an injunction be issued prohibiting defendant from "enforcing or attempting to enforce against plaintiff(s) * * * the resolutions and threats herein complained of."

At the request of plaintiffs a three-judge court has been convened in accordance with Title 28 U.S.C. § 2281. The case has been tried to the Court, extensive briefs have been filed and the matter now stands submitted.

The March 19, 1956 resolution is the main target of the plaintiffs. It called for the University to place on probation any fraternity, social organization or other student group compelled by its constitution, rituals or government to deny membership to any person because of his race, color or religion. Such campus organizations were required to file certificates of compliance with the resolution. Beta Mu chapter filed such a certificate of compliance.

On April 17, 1965, at a meeting of the Board of Regents, one of the members of the Board stated that after reading accounts in the newspaper concerning the suspension of the Sigma Chi chapter at Stanford University he entertained serious doubts concerning the accuracy of the certificate of compliance filed by Beta Mu chapter in purported compliance with the 1956 resolution. He offered a resolution requiring Sigma Chi to produce evidence that the Stanford suspension was not connected with the pledging of a Negro student by the Stanford chapter. The full text of the remarks and resolution as reflected by the minutes reads as follows:

"I am extremely concerned over the implications of the action of the national Sigma Chi Fraternity suspending its Stanford University chapter immediately after that chapter had pledged a Negro student. The suspension was supposedly for failure to `carry on the ritual, standards and traditions of the fraternity.' It is to be noted that the fraternity has a clause which forbids a chapter from proposing membership for anyone `likely to be considered personally unacceptable as a brother by any chapter or any brother anywhere.'

"By rule of many years standing the University of Colorado requires that no fraternity or sorority have any provision systematically barring membership to any person on account of race, creed or religion. All that the University has heretofore required as evidence of nondiscrimination is a certificate from the organization involved certifying as to the lack of discriminatory provision. All fraternities and sororities have eventually filed such a certificate and the University has never looked behind it.

"It now appears that the certificate filed by Sigma Chi does not accurately reflect the situation in that fraternity. The evidence seems overwhelming that Sigma Chi does have a rule violating the nondiscrimination policy of this University. I do concede the possibility, however, that the appearance of discrimination may be without foundation. I certainly would want to know the national fraternity's explanation of this. Therefore, I move the following resolution:

"RESOLVED, That the Secretary of the Board of Regents request the national officers of Sigma Chi Fraternity to within 30 days supply to the Board of Regents a statement as to the reasons for the suspension of the Stanford University Chapter of Sigma Chi and to further supply all evidence substantiating the statement and showing that the suspension was in no way connected with the pledging of a Negro student by the Stanford chapter and that the matter be placed on the agenda for the May meeting."

The resolution was adopted unanimously. A copy of the statement and resolution was forwarded to the secretary of the national Sigma Chi organization. Notice was included that the May meeting of the Regents would be held on "the 28th of the month at 2:00 p. m., in Room 302, Regent Hall, on the University of Colorado campus in Boulder." The president of Beta Mu chapter, Charles Licka, was advised that the Board "was going to hold a meeting to decide whether Beta Mu chapter of Sigma Chi would be placed on probation." It is stipulated that "Licka, at that time, was given some material relating to the Stanford situation," and that Licka was notified "as to the time of the May meeting of the Regents."

Prior to the May meeting, an inquiry by correspondence was instituted by Don Saunders, Secretary of the Board of Regents. This correspondence was with Sigma Chi national officers, with Stanford officials, and with officers of the Stanford chapter. There was also correspondence between Beta Mu chapter and its national officers. The officers of Beta Mu were instructed to remain silent at the May meeting.

At the May meeting of the Board, held on May 29th, 1965, a resolution was adopted placing Beta Mu chapter on probation. The resolution somewhat reveals the basis of the action which was taken. The text of this resolution is as follows:

"WHEREAS, the Regents of the University of Colorado on March 19, 1956 adopted a policy resolution declaring that there shall be no distinction or classification of students at the University of Colorado made on account of race, color or religion; and, further, that after September 1, 1962, the University shall place on probation any fraternity, social organization or other student group that is compelled by its constitution, rituals or government to deny membership to any person because of race, color or religion; and

"WHEREAS, the Regents on April 17, 1965 requested that the national officers of Sigma Chi Fraternity provide within 30 days a statement of reasons for the suspension of the Stanford chapter of the Fraternity; and, further, to provide all evidence substantiating the statement and showing that the suspension was in no way connected with the pledging by the Stanford chapter of a Negro student; and

"WHEREAS, the requested materials have been provided and have been studied by the members of the Board of Regents, along with materials provided by Stanford University and by the Stanford chapter of Sigma Chi Fraternity; and the University chapter of Sigma Chi has been invited to present any information they desired but have not seen fit to do so; and

"WHEREAS, it clearly appears that the suspension of the Stanford chapter was directly connected with that chapter's announced intention to rush and pledge on a non-discriminatory basis and that the chapter's action thereby violated an unwritten tradition or practice of the national Sigma Chi Fraternity; and

"WHEREAS, the Stanford episode demonstrates that the chapters of Sigma Chi fraternity are compelled to deny membership on the basis of race, color or religion and that the certificates of non-discrimination heretofore filed are not correct;

"NOW, THEREFORE BE IT RESOLVED: that the University of Colorado chapter of Sigma Chi Fraternity is hereby placed on probation with immediate loss of the privilege of rushing and pledging and that the chapter shall remain on probation until it can fully comply with the University policy resolution of March 19, 1956."

At the May meeting of the Regents, the officers of Beta Mu chapter remained silent. As a result the information before the Board was limited to various correspondence, including letters written directly to it by the chief executive officer of the Sigma Chi Fraternity, Grand Counsel Wade. There were also several letters of Wade which had been written to others, and a considerable volume of correspondence with others...