A libertarian student organization filed a lawsuit against UC Berkeley in December 2017. The student group, Young Americans for Liberty (YAL), alleged that the university denied them status as a registered student organization due to political bias. The University denied the allegation and settled the lawsuit the following year.

Why did YAL sue? The university initially denied YAL's application to register as a student organization because it was "too similar" to other student organizations on campus (Cal Libertarians, specifically). The YAL students were instructed to attempt to work with the Cal Libertarian group. If they could not work through Cal Libertarians, the YAL students would need to submit a "statement of uniqueness" to continue the application process. In the settlement, new rules state that the university cannot require students to collaborate with other student organizations and that it cannot deny an application because an organization appears too similar to other organizations on campus.

This lawsuit and settlement affirm one important fact (for government universities, anyway): Student organizations are creations, expressions, and property of students, not the university. They are called "student organizations," not "student affairs organizations." Furthermore, the rules applied to student organizations, like all rules in a functioning and democratic society, must be "general, equal, and certain" (F.A. Hayek). The rules before UC Berkeley's settlement did not meet that basic threshold of "good" rules. They were too subjective and targeted.

Each fraternity represents a series of long-standing traditions, special value sets, and a storied history that together offer an anchor that many young men crave - Alexandra Robbins, Fraternity

"Closed" for expansion

The issue YAL faced at UC Berkeley is a common problem for fraternities seeking to establish chapters at public institutions across the United States. Although such institutions are "open expansion" (by law, as campus-based fraternity/sorority professionals will begrudgingly acknowledge), the term "open expansion" means different things to different people. At some schools, "open expansion" means that they will accept and recognize new fraternities only after none of the existing chapters are "struggling." (Read this article for more on why that's an inexcusable excuse) Some "only" book fraternities out one or two years in advance. So they are "open" to one or two new fraternities each year.

There are two issues with university expansion and recognition policies as they relate to college fraternities:

1. The rules only apply to social fraternal organizations

The rules for recognition, maintenance of recognition, and the establishment of fraternity and sorority organizations are different than for any other student organization. This includes student organizations affiliated with other inter/national organizations such as the Red Cross or a particular religion. By definition, this is discrimination. Having one set of standards for social, fraternal student organizations and a different set of standards for every other type of student organization is not fair treatment.

2. Local and unrecognized fraternities and sororities are a particular target of Student Affairs professionals

Local fraternities, like their inter/national counterparts, do not have the best reputation. Schools refer to unrecognized fraternity chapters as threats to the student body or community. Just look at the messy disaffiliation of 9 fraternities from Duke University this past spring. This, again, needlessly separates student groups based on their similarities or differences from one another, but it also prevents new fraternities and sororities with modern standards and policies from getting a chance to appeal to modern students. I explored this point as it relates to diversity, equity, and inclusion.

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There are laws in the United States which prevent anti-competitive behavior. UC Berkeley violated these laws in their treatment of YAL compared to other student groups at the university. Across the board, colleges and universities are making it more difficult to join and start new fraternity and sorority chapters. The laws apply to non-profit and for-profit organizations equally.

What is preventing fraternities and sororities from holding universities up to the law? Lawsuits are expensive. Threatening almost every public university in the country with an antitrust lawsuit would be a massive endeavor. Still, we can find hope and evidence to support our association rights in the UC Berkeley settlement and Harvard's capitulation last spring. Perhaps fraternities could recruit the help of the Foundation for Individual Rights in Education (FIRE). Maybe some of these issues would be addressed with the Collegiate Freedom of Association Act.

We should also consider equipping students at private universities with helpful information to argue the case for a more liberal fraternity/sorority expansion policy. There is nothing inherently wrong or evil with social, fraternal organizations. Whether you consider "fraternity/sorority life" as a separate entity within a student affairs department to be favorable treatment or undesirable micromanagement - it isn't fair or equal treatment when compared to other students and student organizations.

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