New Lawsuit Challenges Deferred Recruitment at USC

Tim Burke, Manley Burke, tburke@manleyburke.com

On June 22^nd the chapters of Kappa Alpha Theta, Sigma Chi, Beta Theta Pi, Theta Xi and Tau Kappa Alpha at the University of Southern California (USC) filed suit against the University.¹  The suit seeks an injunction prohibiting USC from enforcing its new deferred recruitment policy which forbids fraternities and sororities from recruiting new students until they have completed at least 12 units of courses with a minimum of a 2.5 GPA.  This policy, scheduled to go into effect for this fall’s semester, changes the rules that have been in effect for decades which permitted fraternities and sororities to recruit new students in their first semester at USC.  The lawsuit is based on an argument that deferred recruitment violates the First Amendment Freedom of Speech and Freedom of Association rights of the members, prospective members and organizations impacted by the policy.

What makes this lawsuit particularly interesting and important is that USC is a private school.  In most instances across the country, private schools are not bound to provide constitutional protections to their students, but two matters make USC susceptible to this litigation.  First, USC’s own written policies have guaranteed their students’ First Amendment protections.  In the University’s published policy on “Free Expression and Dissent,” the University has said clearly to its students that “In all cases, the rights of students under the First Amendment to the Constitution, as applied by California law, will always be protected.”  In fact, another of USC’s published policies recognizes that its students “shall be free to organize and join campus associations to promote their common interests.”

But USC’s exposure does not end with the contract claims these policy statements may provide to its students.  What appears to be controlling is California’s Leonard Law, California Education Code, Section 94367.  That section specifically applies to private schools stating:

“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 restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.”

The Leonard Law goes on to provide that a student may bring an action to obtain appropriate injunctive and declaratory relief and to recover attorney’s fees.

In this case, the plaintiffs are seeking injunctive relief prohibiting USC from enforcing its deferred recruitment policy.

The complaint carefully details the history and benefits of the national organizations and their chapters who are plaintiffs in the case, identifying well-known alums, philanthropic and community service activities, and leadership opportunities of the plaintiffs.  The complaint contrasts the benefits of first semester recruitment, both to the organizations involved and to their prospective members, contrasting that with USC’s lack of ability to articulate a clear public policy justification supporting deferred recruitment.  While USC claims that “the benefit of allowing new students one semester to acclimate to USC academics and social life,” the complaint argues that this reason “does not withstand even minimal scrutiny, let alone the strict scrutiny required when students’ First Amendment rights are violated.”  Calling the USC policy “blatantly discriminatory,” the complaint points out that deferred recruitment only applies against students based solely on the group they want to join and “in doing so, discriminates against sororities and fraternities.”  USC proposes no restrictions on incoming students from joining any other organizations.

The suit has been filed by a team of attorneys from the Los Angeles and Washington, D.C. offices of Kirkland and Ellis, one of the largest law firms in the United States.

Clearly this lawsuit is intended to reach a quick resolution on the issue of injunctive relief in order to prevent the policy from going into effect with the upcoming start of the new academic year.  Thus, we should know the result of that effort, and will report that in the September issue of Fraternal Law.

1              Omicron Chapter of Kappa Alpha Theta Sorority, et al. v. University of Southern California, Sup. Ct. of the State of California, County of Los Angeles, Case No. BC711155.