Appeal from the Circuit Court of Cook County No. 09 CH 28288 Honorable Dorothy Kirie Kinnaird, Judge Presiding.
The opinion of the court was delivered by: Justice Cahill
JUSTICE CAHILL delivered the judgment of the court, with opinion. Justices J. Gordon and McBride concurred in the judgment and opinion.
Defendant Illinois Institute of Technology (defendant or Institute) appeals a preliminary injunction in favor of plaintiff Illinois Beta Chapter of Sigma Phi Epsilon Fraternity Alumni Board (plaintiff or fraternity), barring defendant from implementing a new housing policy. This policy would require first-semester students who breach their residence hall contracts and move into a fraternity or sorority house to fulfill 100% of their obligation to the residence hall. Defendant previously allowed first-semester students to move into Greek housing with no or a minimal penalty. We believe plaintiff failed to establish the elements necessary for a preliminary injunction and reverse the judgment of the circuit court.
In early 2009, defendant began developing a policy known as the "Greek Move Policy." Defendant held a series of meetings with fraternities and sororities, including plaintiff, who provided feedback and suggestions. Defendant finalized the policy and planned to implement it for the 2009-10 academic year. The policy provided, among other things, that first-semester students who pledged a fraternity or sorority in the first week of classes would not be freely released from their residence hall contracts if they chose to move into Greek housing. Students who wished to move into Greek housing in the second semester would be freely released from their contracts. Defendant requires incoming first-semester students to either sign a residence hall contract or live at home if they are within commuting distance.
Plaintiff sought declaratory and injunctive relief, alleging it would suffer irreparable harm if the new policy were enforced. Plaintiff alleged that under an agreement between plaintiff and defendant in 1964, plaintiff had the right to designate first-semester students to live in the fraternity house and the new policy would violate this right. Section 13 of the 1964 agreement states: "[T]he Institute will not unreasonably refuse so to assign [to the fraternity house] any men students in good standing regularly enrolled in a department or departments of the Institute who shall be so designated by the [fraternity]." Plaintiff argued the new policy constituted an unreasonable refusal by defendant to assign designated students to the fraternity house. Plaintiff sought, among other things, a declaration that the 1964 agreement remained in effect and preliminary and permanent injunctions, compelling defendant to allow first-semester students to live in the fraternity house.
The trial court heard arguments and testimony August 25, 2009. "Bid day," in which students accepted offers from fraternities and sororities, was on or about September 5, 2009.
Joshua James, a junior and a member of the fraternity, testified for plaintiff. James said that when he was an incoming freshman in 2007-08, he moved into an assigned dormitory and was required to go through "rush week" during the first week of classes. James accepted a "bid" to live in plaintiff's fraternity house and moved the next weekend. He testified to the inconvenience of this arrangement. James described the academic benefits of living in the fraternity house and participating in the fraternity's positive "balanced man," "sound mind," and community service programs. James described the fraternity's bonding programs and opined that his bonds were stronger with fraternity members who lived in the house than with members who lived outside the house. On cross-examination, James said the fraternity does not require students to live in the house and he admitted that the beneficial programs were available to members who did not live in the house. James said that as of the date of the hearing on August 25, 2009, no incoming freshmen had yet pledged a fraternity or elected to live in a fraternity house.
William Lowden, a representative of plaintiff's alumni board, testified to the academic and social benefits of fraternity membership. Lowden admitted on cross-examination that members living outside the house can participate in the fraternity programs.
Phillip Vittore, a 1954 pledge, said he was involved in drafting the 1964 agreement. Vittore estimated the new housing policy would cause the fraternity to lose 15 to 20 incoming freshmen and $140,000 from its operating budget. He said the new policy will "destroy us." Vittore said on cross-examination that members are not required to live in the house but having fewer than 40 residents leads to financial "bleeding from the arteries."
Defendant moved for a directed verdict, arguing plaintiff failed to establish a prima facie case for an injunction. Defendant further argued the cause was not ripe because there was no evidence that defendant had withheld student designations to move into fraternity houses. Defendant maintained plaintiff's evidence was insufficient because its witnesses all had lived in the fraternity house and its failure to call a member who did not live in the house defeated the argument that irreparable harm occurs if a member does not live in the house. The trial court denied defendant's motion for a directed finding.
Dr. Alan Cramb, the Institute's provost and senior vice-president for academic affairs, testified for defendant. Dr. Cramb said that under the new housing policy, defendant will not waive the financial obligation of a student who moves into a fraternity house in the fall semester after signing a housing contract. Students who decide in the fall to move to a fraternity house in the spring may do so without penalty. Dr. Cramb confirmed that "rush" had not yet occurred for 2009-10 and would take place around September 5, 2009. Dr. Cramb said the Institute plans to enforce all housing contracts, not just the contracts of incoming freshmen who move to fraternity houses. Dr. Cramb said the change was made for financial reasons, including losses in the endowment. Defendant was losing significant revenue when students moved after signing a contract and defendant could not refill the rooms. Dr. Cramb also expressed concern that students were making the major decision to live in a fraternity house within one or two days of starting college. Dr. Cramb said the proposed new policy was discussed with the leaders of sororities and fraternities, including plaintiff, and changes were made based on their concerns. On cross-examination, Dr. Cramb admitted the new policy had major financial implications for sororities and fraternities. The trial court then questioned Dr. Cramb directly, eliciting testimony that a student who moves to a fraternity house after signing a contract to live in a dormitory would have to pay "a few thousand dollars" to fulfill its housing contract while at the same time paying to live in the fraternity house.
Erin Gray, defendant's director of student life, testified that other institutions, including Northwestern, Northern Illinois, Eastern Illinois and Southern Illinois Universities, have policies similar to defendant's Greek Move Policy. On cross-examination, Gray admitted she did not know if the universities had contracts similar to plaintiff's 1964 contract with defendant.
The trial court granted the preliminary injunction, concluding in a written order: (1) plaintiff showed through the evidence, testimony and the 1964 agreement that it had a contractual right in need of protection; (2) plaintiff showed the likelihood of success on the merits; (3) plaintiff showed that irreparable harm would occur without an injunction; (4) ...