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Suspended Frat Sues W&L
Phi Zeta Delta Says Procedures Weren’t Followed
Washington and Lee University is being sued by a suspended fraternity for allegedly breaching the lease on its fraternity house and for breaching an implied contract between the fraternity and the university by not following the established disciplinary procedures laid out in the university’s student handbook. The Phi Zeta Delta fraternity was suspended for five years in April of 2023 following a pair of hearings before the school’s Interfraternity Council (IFC) on an alleged hazing incident that occurred at the fraternity house on the night of Jan. 28-29, 2023. Following the suspension, the school terminated the fraternity’s lease on its house at 5 W. Henry St. and ordered that all the students within vacate the premises by the end of that May.
In the complaint filed on Jan. 3, the fraternity declared that it is seeking financial reconciliation of “no more than $500,000,” lifting of the IFC’s suspension, a restoration of the lease, a “fair hearing of the hazing allegations” before the school’s Student Judiciary Council (SJC) and for the court to “empanel a jury to hear all issues triable by jury.” -In the complaint filed in January, the fraternity’s lawyer, Paul Beers, a gradu- ate of W&L’s law school, detailed a timeline of events between the alleged hazing incident and the termination of the lease.
On Feb. 13, 2023, the IFC charged Phi Zeta Delta with hazing a new member and gave written notice that the fraternity had violated Article II, section B of the IFC’s code of conduct bylaws. The fraternity was suspended until at least the 2027-28 school year, with its return subject to approval of the Student Affairs Committee.
The fraternity appealed the ruling to the University Board of Appeals (UBA), and the alleged victim of the hazing incident provided the board with “medical records and other information … which exculpated or tended to exculpate the fraternity from the hazing and related allegations leveled by the IFC.”
On March 9, the UBA returned the matter to the IFC for reconsideration based on this new evidence.
On March 14, the IFC held a second conduct hearing, during which the alleged victim testified that no hazing had occurred but “opted on three occasions during the conversation not to share the personal details or information he shared with the UBA due to them being too personal,” the IFC wrote in its second ruling on the incident, dated March 19.
In that ruling, the IFC reimposed the suspension, citing an anonymous witness who had submitted written testimony that the alleged victim was lying about not being hazed.
The fraternity again appealed the ruling to the UBA, but the board declined to hear the case again, issuing a ruling on April 26 upholding the suspension.
The next day, the university terminated the fraternity’s lease on the Henry Street house, “evicted and expelled the fraternity and ordered members of the house to remove their personal property from the house following the conclusion of the spring semester.” -The original complaint contained three counts for the suit: breach of the lease, breach of the student handbook and breach of implied contract. The third count was proposed as an alternate count to the breach of the student handbook count.
For the breach of the lease, Beers argued that the university’s “abrupt termination” of the lease “breached multiple substantive and procedural terms and conditions of the lease.”
Specifically, he cited paragraph 15 of the lease, which was originally signed in 1991 and renewed in 2021. The paragraph in question notes that the university can only terminate the lease for “good cause” after giving the fraternity 50 days notice and allowing a 30-day period for the fraternity to address any issues. The lease also states that, in the event that there is a disagreement over whether the lease should be terminated, an arbitration council comprised of representatives from the university and the Alumni Greek Council would be convened to settle the issue.
Additionally, Beers argued the university lacked good cause to terminate the lease because the IFC lacked jurisdiction to rule on any alleged hazing incident against the fraternity.
In the complaint, Beers noted that the Washington and Lee University Student Handbook lays out the bodies that oversee disciplinary action at the school, and where each has jurisdiction.
While the IFC is responsible for disciplinary action against fraternities that are associated with a national organization, fraternities that are not associated with a national organization would fall under the jurisdiction of the Student Judiciary Council. Phi Zeta Delta is not associated with a national fraternity, and has not been associated with a national fraternity since 2018, and any alleged hazing incidents against the fraternity, Beers argued, should have been heard by the SJC, not the IFC.
The student handbook lays out the procedures for hearings before both the SJC and IFC, which include a standard of confidentiality and the ability by the accused party to question and cross examine witnesses, both of which, Beers argued in the complaint, would have benefited the fraternity by guaranteeing the confidentiality of the alleged victim’s private medical information and allowing them the opportunity to question the anonymous witness who provided testimony to the IFC.
The failure by the university to follow the disciplinary procedures as described in the student handbook also formed the core arguments for counts two and three.
“In depriving the fraternity of a fair hearing before the SJC … W&L breached the student handbook and violated the contractual rights of the fraternity and its membership,” Beers wrote when laying grounds for the alleged breach of the student handbook, adding that the university “acted arbitrarily, capriciously and in bad faith through it agents, representatives and delegates … [by] approving, ratifying, endorsing and upholding the IFC’s wrongful suspension of the fraternity.” -In response to the complaint, Maya Eckstein, council for the university, filed a plea in bar on the breach of lease count and demurrers for the other two counts.
A plea in bar challenges a single issue with the count that, if proven, creates a bar to the plaintiff’s recovery, and a demurrer is a contention that the pleading either doesn’t state a cause of action or doesn’t state facts upon which relief can be demanded.
For the breach of lease plea in bar, Eckstein argued that the lease Beers cited in his complaint “does not reflect the lease terms that existed at the time the fraternity began occupying the house at 5 W. Henry St., or that governed the relationship between W&L and the House Corporation in 2023.”
Eckstein submitted an amendment to section 15 of the lease that was agreed to by both parties in November of 1990, prior to the lease going into effect in 1991. The amendment included a clause that allows the university to terminate the lease without providing the 50-day notice if the fraternity is found to have violated the university’s “fraternity standards.”
For the count of violating the student handbook, Eckstein’s argument focused on the fact that the handbook explicitly states in multiple places that it is not a contract, and for the breach of implied contract count, she noted that there are two different kinds of implied contracts – implied-in-law contracts and implied- in-fact contracts.
She noted that the plaintiffs failed to specify which type of implied contract the university is supposed to have violated, and argued that they had failed to provide facts to support either type of contract existing between the university and the fraternity, such as benefits to the university that came from the existence of the fraternity on campus.
A hearing on the plea in bar and demurrers was held on March 5 in Rockbridge County Circuit Court. After hearing arguments on both sides, Judge Christopher Russell ruled that the plaintiffs amend the breach of lease count to account for the amendment to the lease and replead the count. He also sustained the demurrer on the breach of implied contract count, but allowed the plaintiffs to amend that count as well. The breach of handbook count was dismissed with no leave to amend.
An amended complaint was filed with the court on March 25. In it, Beers argued that the university breached paragraph 15 A of the amended lease by “suspending the fraternity and terminating the lease without cause or lawful basis, particularly since the fraternity never hazed or engaged in any of the misconduct the IFC accused it of committing” and by “suspending the fraternity and terminating the lease arbitrarily without affording the fraternity a hearing in front of the SJC.”
For the breach of implied contract count, Beers cited several benefits the fraternity brought to the university, including tuition and student activity fees from members, fees and charges paid by the fraternity itself, services “of a social nature provided by the fraternity to the student population” such as putting on social events to which “all or large sections of the student body are invited” and providing “a setting for members and non-members of the fraternity to congregate and attend social events,” assisting the university in “attracting and retaining students” by providing “fraternal development and leadership opportunities,” and assisting the university’s fundraising efforts by “maintaining and developing alumnae allegiance and loyalty to W&L.”
A hearing on the amended complaint is scheduled for May 10.
