DEFERRED RUSH: A VIOLATION OF EQUAL PROTECTION?

James Harvey

“Our Constitution …neither knows nor tolerates classes among citizens.” ¹

A number of universities have imposed so-called “deferred rush” on their Greek-letter groups, under which recruitment of new members is banned until the second academic term or later.  The asserted rationale for deferred rush is to allow freshmen to become accustomed to campus life before making a commitment such as fraternity membership.  But freshmen on those campuses are not barred from participating in other campus activities, clubs, or sports teams.  This article will discuss whether deferred rush could violate the Equal Protection rights of fraternities and their members.

Deferred rush was in the news after the September 2004 death of a University of Colorado (CU) freshman, who died after a drinking binge at a fraternity house.  The fraternity’s charter was revoked, and five members of the group faced criminal charges in the death.  In the wake of the pledge’s death, CU proposed a new set of regulations for all its Greek-letter groups.  The most controversial new rule deferred rush to the spring semester.  CU’s sororities consented to the arrangement, but after months of negotiations the school’s 16 fraternities refused to go along.  As a result, all 16 fraternities lost their status as recognized campus organizations.  The fraternities considered litigation, but ultimately decided to sever their formal ties to the university in order to maintain their ability to rush first-semester freshmen.

CU Vice Chancellor Ron Stump told the Colorado Daily that deferred rush was very important to the university, partly because it would deter the school’s “drinking culture.”

Stump told the Boulder Daily Camera that CU’s intent was to protect its freshmen: “The way it is now, you are literally being rushed into making a decision.  By having a semester under their belt, if something comes up during that rush program that they feel is going to be harmful for them, they have the ability to step back and say, ‘I have other things I can do.’  It gives them a little more maturity, which is pretty huge when you are a freshman.”

Other schools have imposed deferred rush because of a poor academic showing by some of their fraternities, especially among new members.  And the American Council on Education has recommended deferred rush to its members as part of a strategy for “institutional control” of Greek organizations.  But none of the universities that have mandated a deferred rush are known to have restricted freshmen from joining any other campus organization.  The question that will eventually be litigated, somewhere, is whether that distinction violates Equal Protection.

Equal Protection

The 14^th Amendment to the U.S. Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially a command that all persons similarly situated be treated alike.  The Equal Protection Clause has been called the most important provision of the Constitution for protecting individual rights.  Constitutional prohibitions apply only when “state action” is implicated, so the discussion herein applies only to public universities, which are “without question” state actors.  NCAA v. Tarkanian, 488 U.S. 179 (1988).

Depending on the circumstances, a court will apply one of two tests when reviewing an Equal Protection challenge.  If the government action neither targets a suspect class (such as a racial minority) nor burdens a fundamental right, it will be upheld if it bears a rational relationship to a legitimate government purpose – the “rational basis” test.  On the other hand, if the action does affect a suspect class or burdens a fundamental right, the government must show a compelling state interest, and that the action is narrowly tailored to meet that interest – the “strict scrutiny” test.

The standard of review is everything in Equal Protection cases.  Few government regulations are struck down under the rational basis test, whereas not many survive the application of strict scrutiny.  What test would be applied to a fraternity’s challenge to deferred rush?

Freedom of association has been held to be a fundamental Constitutional right.  Boy Scouts of America v. Dale, 530 U.S. 640 (2000); Roberts v. United States Jaycees, 468 U.S. 609 (1984).  As applied to the university setting, freedom of association requires that a student organization be given the benefits of university recognition, including use of campus facilities, which will allow its members to conduct their activities.  A university must shoulder a “heavy burden” to justify denying those benefits, and may do so only if the group violates campus rules or disrupts campus order.  Healy v. James, 408 U.S. 169 (1972).

After the Supreme Court’s decision in Dale, it seems clear that fraternities can claim Constitutional protection as expressive associations, and therefore that strict scrutiny should apply.  But if a court decided that fundamental rights are not at issue, then the rational basis test would be applied, and the fraternity would almost certainly lose.  This was illustrated in Pi Lambda Phi v. Univ. of Pittsburgh, 229 F.3d 435 (3^rd Cir. 2000).  In that case, the fraternity’s recognition was suspended after a raid found drugs in the fraternity’s house.  The fraternity challenged the suspension.  One of the fraternity’s arguments was that its Equal Protection rights had been violated because it was treated differently than other campus organizations.  But because of an inadequate evidentiary record, the court held that the fraternity was not protected by freedom of association.  So its Equal Protection claim was reviewed only under the rational basis test:

“[B]ecause there is no fundamental right at issue here (since the Chapter’s expressive association claim fails), any different treatment of the Chapter by the University should be reviewed under the rational basis test.  The District Court found that the University had a rational basis for treating fraternities differently from other students and groups … Fraternities and sororities are the only University student organizations that maintain their own off-campus housing for students, so it is clearly rational for the University to subject them to certain rules that do not apply to other student organizations.”  Id. at 447, fn. 6.

Deferred Rush – A Compelling Interest?

Assuming proper evidence and arguments are presented to show that a fraternity is a protected association, any regulation that impairs a fraternity’s rights would likely be reviewed under strict scrutiny.  So in a challenge to deferred rush, a university would have to prove that delaying participation in fraternities, as opposed to participation in other campus activities, is a “compelling state interest”.

It seems an uphill fight for the university.  But a university would have one advantage – many cases have held that substantial deference must be paid to a university’s views about how best to carry out its academic mission.  “A university’s mission is education, and decisions of this Court have never denied a university’s authority to impose reasonable regulations compatible with that mission …” Widmar v. Vincent, 454 U.S. 263, 268 (1981).  If a university could establish that early membership in a fraternity has a harmful effect on freshman academic performance, it could argue that this is a compelling state interest.

Here is where the facts and evidence will become critical.  The university will assert that fraternities are fundamentally different from other student groups.  It will argue that they have more impact on their members academically and socially, partly based on statistics and research studies.²  On many campuses, unfortunately, the university will be able to point to low GPAs, incidents of hazing, and dangerous binge drinking.  The question will be whether the evidence relied on by the university can withstand courtroom scrutiny under the rules of evidence, including cross-examination by skilled attorneys.

Fraternities will also be able to point out that hazing and low GPAs are common in athletic teams, and that binge drinking is not confined to fraternities.  Participation in other campus activities can be just as time-consuming, depending on how much each student decides to contribute of him or herself.  And on the campuses where deferred rush has been imposed on fraternities, the administration is apparently not concerned about how the GPA of the Ski Club or the Young Republicans or the campus newspaper staff compares to the All Men’s Average.  Nor is it preventing freshmen from joining the football team or any other campus club.

Fraternities will also be able to argue that the restriction is not narrowly tailored to address the university’s concerns, since deferred rush is typically imposed across the board, applying even to groups with a high GPA and no history of behavior problems.  A university’s deferred rush plan might have a better chance of withstanding challenge if it was applied as a disciplinary remedy, and only to those groups with a demonstrated negative history.

Because of the increasing number of universities attempting to impose deferred rush on their Greek-letter groups, it is almost inevitable that the validity of the practice will be litigated at some point.  When that occurs, it appears that an Equal Protection argument can be made on behalf of the fraternities, but to prevail the evidence and arguments must be carefully developed.

* Mr. Harvey is an attorney in Orange County, California.  He is a member of Phi Delta Theta and the NIC Legal Advocacy Committee.

1 Plessy v. Ferguson, 163 U.S. 537 (1896) (Harlan, J. dissenting.)

2 This author has argued that fraternities are unwittingly supplying their critics with much of the evidence that might be used against them, primarily by allowing broad access to their undergraduates’ GPAs.