Good News and Not So Good News in the Challenge to USC’s Deferred Recruitment Policy

Tim Burke, Manley Burke, tburke@manleyburke.com

On May 1^st, the Court of Appeal for the State of California, Second Appellate District, announced its decision¹ in the lawsuit challenging the University of Southern California’s deferred recruitment policy. That lawsuit, which was originally filed in the summer of 2018, had failed at the trial court level and was on appeal. The suit was based on California’s Leonard Law². That law incorporates the provisions of the First Amendment to the United States Constitution into the California law and prohibits even private schools from enforcing rules “subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communications that, when engaged in outside the campus or facility of a private post-secondary institution.” As a result, because of California’s unique law, a First Amendment claim could be brought against the University of Southern California (USC) even though it is a private institution.

The trial court denied a request for an injunction prohibiting USC from implementing the deferred recruitment policy because the plaintiffs could not show that the policy “was created as a disciplinary sanction.” Alternatively, the trial court held that the Leonard Law applied only to free speech rights, not the right of association .

The Appellate Court disagreed with the trial court on both of those points. First, the Appellate Court made clear that the language of the Leonard Law did not require that the policy itself be imposed as a discipline but rather that a violation of the policy could subject those who violate it to discipline. As the Court noted, the Leonard Law applies “to University  rules that had not yet been enforced but that render a student vulnerable to discipline for engaging in conduct proscribed in the rule. . . the deferred recruitment policy (in conjunction with USC’s Student Handbook) does just that.”

Perhaps of greatest benefit in the future, the Appellate Court clearly recognized that the Leonard Law language protection of on-campus “speech or other communication” does encompass expressive associational activity. The court cited several California cases and U.S. Supreme Court cases that have help the right of expressive association to be “closely linked” to the First Amendment free speech rights and implicit in those speech rights.

It is also worth noting that both the trial court  and the Court of Appeal held that fraternity chapters have standing to assert the rights of their members. Based on those conclusions, the Court of Appeal reversed the trial court and sent the matter back for further consideration.

All that is good news for fraternities and sororities in the state of California, but there are significant challenges ahead based on comments by the Court of Appeal. First, the Appellate Court made it clear that the four fraternity and one sorority chapters who were plaintiffs in the lawsuit had standing to assert the rights of their members, but not also the rights of nonmember student who might be interested in joining. As the Court put it, in somewhat curious language in one of its section headings, “plaintiffs  have standing to sue, but that standing cabins the interests they may assert.” Thus, unless the plaintiffs are able to amend their complaint or potentially add nonmember plaintiffs, when this case goes back to the trial court, plaintiffs will be limited in what arguments they can make.

The Appellate Court also recognized that while its clear the fraternity chapters and their members have First Amendment rights, so does the University of Southern California. Language in the Court’s decision suggests that “a university’s exercise of genuine academic judgement is of First Amendment dimension and deserving of deference from the courts³.”

Relying in part on the deference due to USC, the Court of Appeal questions the ability of the plaintiffs to succeed when this matter is referred back to the trial court. The Court of Appeal put it this way:

If the deferred recruitment policy is the product of the University’s genuine academic judgement that the policy will benefit student edification, these allegations of what is an attenuated effect on expressive associational activity would not suffice to establish a [Leonard Law] violation.

But the Court noted that plaintiffs’ claim that the University’s policy constituted viewpoint discrimination as the prohibition on first semester membership was only being applied to Greek groups. Even though the Court appeared to question the validity of those claims, given this stage of the litigation, the Court had no choice but to consider them true, concluding with this somewhat disconcerting warning:

At this stage of the case, we must take as true Plaintiff’s allegation that the deferred recruitment policy was enacted with ‘no factual basis’ and merely as a discriminatory attempt to place fraternities and sororities in a disfavored category.’ We will therefore reverse the ruling of dismissal and give the Plaintiffs the opportunity to attempt to substantiate this allegation. If they cannot, judgement for USC will again be warranted.

Undoubtedly there will be more news about this case as it develops further after its trip back to the trial court.

¹Omicron Chapter of Alpha Kappa Theta Sorority v. Univ. S. Cal., No. B292907, 2019 WL 1930153 (Cal. Ct. App. May 1, 2019).

²Cal. Educ. Code § 94367.

³Omicron Chapter, 2019 WL at *6 (citing Grutter v. Bollinger, 539 U.S. 306, 324, 328–29 (2003)).

⁴ It should be noted that the court ordered this decision not to be published in the official reports. California rules of court limit how an unpublished decision can be cited or relied upon.