Court Upholds USC’s Deferred Recruitment Even Though USC Knows It Violates Associational Rights

Tim Burke, Fraternal Law Partners, tburke@manleyburke.com

Two years ago, the University of Southern California (“USC”) instituted a deferred recruitment program that prohibited fraternities and sororities from recruiting new members from among the freshman class until those students had completed twelve credits with a minimum USC grade point average of 2.5. That essentially meant freshman members could not be recruited until the second semester.

         While many have argued that deferred recruitment infringes on the First Amendment’s freedom of association rights of members, would-be members, and fraternal organizations, that issue has not been previously fought in court. USC is a private University. In most states, a constitutional challenge cannot be successfully brought against a private school. However, California has a unique statue known as the Leonard Law. It provides that:

            No private post-secondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct, that is speech or other communication that, when engaged in outside the campus or facility of a private post-secondary institution, is protected from governmental restrictions by the First Amendment of the United States Institution or Section 2 of Article I of the California Constitution.[1]

         Based upon the Leonard Law and with the assistance of R. Alexander Pilmer and other lawyers from the law firm of Kirkland & Ellis, LLP, the USC chapters of Kappa Alpha Theta Sorority, Sigma Chi, Beta Theta Pi, Theta Xi, and Tau Kappa Epsilon fraternities filed suit seeking to prevent USC from enforcing its deferred recruitment policy.

         After a battle of more than two years, on October 22, 2020, Judge Theresa A. Beaudet of the Los Angeles Superior Court granted USC’s Motion for Summary Judgment,[2]deciding the case entirely in USC’s favor without requiring a trial.

         Given what the Plaintiffs were able to document through discovery, the decision is particularly disappointing. As set out in the 25-page memorandum Plaintiffs filed against USC’s Motion for Summary Judgment, USC actually knew and acknowledged that its deferred recruitment violated the First Amendment right to expressive association. In a 2014 memo regarding deferred recruitment, USC’s Vice President for Student Affairs, Dr. Ainsley Carry, wrote that “the ability to freely associate is a right guaranteed to students via the U.S. Constitution. Placing restrictions on when and who fraternal groups are allowed to recruit infringes on the rights of all students.” At that same time, the University was beginning plans for a $700,000,000 investment in a real estate project called The University Village. Dr. Carry explained that “leading up to the University Village. . . similar to membership in a Greek-letter organization, residential college members. . . [will] be identified by crest, logo, mission statement and value statement.” Carry continued, “reflecting on potential threats to the residential college, no threat is more significant than the Greek-recruitment process… this is the most significant threat to the success to the residential colleges.”

        While it appears that the Plaintiffs established that the motivation for the deferred recruitment policy was to damage the biggest competitor to USC’s plans for the University Village and its residential colleges, the Court did not find that sufficient to establish “viewpoint discrimination.” In its decision, the Court said that the test Plaintiffs had to meet was whether they could “demonstrate that the deferred recruitment was adopted ‘not for any bonified academic reason, but simply because USC administrators disapproved of the viewpoint Plaintiffs espoused.’”

        The University claimed to have a bonified academic reason for adopting the deferred recruitment policy and the Court cited to several of those alleged justifications in its decision. They included the fact that in 2015, the Academic Senate had adopted a resolution in support of deferred recruitment. By that time, more than twenty (20) peer institutions had implemented similar deferred recruitment policies. Additionally, sexual assaults occurred more frequently in fraternity and sorority houses than other places on campus. Dr. Carry even cited a concern about hazing deaths based on a news report of a freshman fraternity member dying at Penn State. Finally, the Court cited USC’s statistics comparing the GPA’s of freshmen who took part in fraternity and sorority recruitment to those who did not.

        The Plaintiffs responded to those claimed justifications by pointing out that most of them were after-the-fact pretextual justifications for the policy, developed only after the policy was challenged. Plaintiffs also pointed out that USC’s own evidence showed that Greeks have higher GPA’s than the general student population. For example, in the fall of 2017, Kappa Alpha Theta Sorority had an average GPA of 3.53 while the general student body had an average of 3.37. And the average GPA for all women who were members of sororities was 3.45. Even the Court noted that the Director of Fraternity and Sorority Leadership Development at USC had testified in her deposition that “over [her] five years… most semesters, the Greek community, which is all five councils, are usually at or above the undergraduate GPA.”

        Plaintiffs argued strenuously that deferred recruitment was, on its face, viewpoint discriminatory in that it allowed freshmen to join any other organization on campus except for those “disfavored by USC.” Plaintiffs summarized their position this way:

            Here, the policy fails the limited-public-forum test: it is unreasonable because it frustrates the forum’s purpose and that it is not viewpoint neutral because it discriminates against Greek-letter organizations.

Citing to Christian Legal Society vs. Martinez, 561 U.S. 661(2010), Plaintiffs quoted the late Justice Ruth Bater Ginsburg, who made it clear that the courts remain “the final arbiter[s] of the question whether a public university has exceeded constitutional constraints, and we owe no deference to universities when we consider that question.”

         Plaintiffs’ arguments, as strong as they were, did not satisfy the Judge who summed up her decision as follows:

            But Plaintiffs overlook a key phrase: ‘because of their points of view’. Singling out an organization is not the same as singling out an organization because of its point of view.Here, Plaintiffs offer no evidence that raises a triable issue of fact that USC singled out its fraternities and sororities because of their point of view. And as argued persuasively by USC to the extent that Plaintiffs contend that fraternities and sororities were singled out because USC viewed the Greeks as a threat to the success of the University’s residential colleges, that is not a viewpoint motivating ideology, an opinion or a perspective.

            As of this writing, Plaintiffs have not decided whether or not an appeal will be filed.

[1] Cal. Educ. Code§ 94367.

[2]Omicron Chapter of Kappa Alpha Theta Sorority vs. Univ. S. Cal., No. BC 672782 (Cal. Sup. Ct. Oct. 22, 2020).