USC Deferred Recruitment Case Now in Court of Appeals

Tim Burke, Manley Burke LPA, tburke@manleyburke.com

The constitutionality of the ability of public universities to require deferred rush has long been discussed but not yet tested in court. That is, until now. But that test has been brought against the University of Southern California (USC), a private school, under California’s unique Leonard Law (Cal. Educ. Code § 94367 (a)). That law prohibits private Universities from “mak[ing] or enforce[ing] a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when in engaged in outside the campus or facility of a private post-secondary institution, is protected from government restriction by the First Amendment.” Essentially, the law makes the First Amendment enforceable against private universities. This is important as the First Amendment is generally only applicable to public universities, as public universities are state actors to which the First Amendment applies through the Fourteenth Amendment.

The lawsuit brought by the USC chapters of Kappa Alpha Theta Sorority, Sigma Chi Fraternity, Beta Theta Pi Fraternity, Theta Xi Fraternity and Tau Kappa Epsilon Fraternity against the university failed to obtain the injunctive relief that they were seeking which would have prevented USC from enforcing its newly enacted deferred recruitment policy. The trial court judge appears to have missed the point, misreading the statute and instead suggesting that the plaintiffs “simply have not shown that the [deferred recruitment] policy was created as a disciplinary sanction against any sorority or fraternity for a failure to abide by university policy.” But the policy was adopted by the University and if it is violated the violators, students or fraternity chapters, could be punished by USC simply because students sought to exercise their First Amendment freedom of association rights to join fraternities or sororities during their first semester in school. The disciplinary sanctions which could be imposed on students range from expulsion to suspension to disciplinary probation or a-la-Harvard, “prohibition of student leadership opportunities”, according to the USC handbook.

What follows are excerpts from the 51 page¹ brief filed on behalf of the plaintiffs, now the Appellants, discussing why fraternities and sororities are legally entitled to First Amendment freedom of association protection because they engage in what courts have described as expressive association.

In evaluating a claim of expressive association under the First Amendment, the initial inquiry is whether the group engages in “expressive association.” Boy Scouts of Am. v. Dale (2000) 530 US 640, 648. This is a low bar. The First Amendment’s protections apply broadly and are “not reserved for advocacy groups.” Id. Groups “do not have to associate for the ‘purpose’ of disseminating a certain message in order to be entitled to the protections of the First Amendment.” Id. at 655. Indeed, the group’s expression may be wholly private, and “[t]he fact that the organization does not trumpet its views from the housetops . . . does not mean that its views receive no First Amendment protection.” Id. at 656. As long as the group engages “in some form of expression, whether it be public or private,” the First Amendment protects its associational rights. Id. at 648.

Applying that broad definition, courts have recognized a First Amendment right to associate with wide variety of organizations, including student groups, business organizations, labor unions, Christian societies, schools, civic leagues, political advocacy groups, motorcycle clubs, and event escort services. In Dale, for example, the US Supreme Court found it “indisputable” that the Boy Scouts of America engages in expressive activity protected by the First Amendment because the organization “seeks to transmit a system of values” to its members. Dale, 530 US at 650. Likewise, the Court found that membership in the Jaycees (the Junior Chamber of Commerce) was “plainly” protected by the First Amendment, as the Jaycees “engage in a variety of civic, charitable, lobbying, fundraising, and other activities worthy of constitutional protection under the First Amendment.” Roberts, 468 US at 626—27; see id. at 636 (O’Connor, J., concurring) (“Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement”).

Under those precedents, sororities and fraternities engage in expressive association. Indeed, several courts have already held or accepted that “a college fraternity is no different from the Boy Scouts” and it is therefore “protected by the First Amendment’s expressive associational right.” Iota Xi Chapter v. Patterson (E.D. Va. 2008) 538 F. Supp. 2d 915,923; see Beta Upsilon Chi v. Machen (N.D. Fla. 2008) 559 F. Supp. 2d 1274, 1278 (“[Beta Upsilon Chi] has substantially shown that it is seeking to share and transmit a system of values to its members and is therefore engaging in expressive activity that is protected by the First Amendment.”); Alpha Delta Chi-Delta Chapter v. Reed (9th Cir. 2011) 648 F.3d 790, 797 n.2 (“San Diego State does not dispute that Alpha Delta Chi and Alpha Gamma Omega engage in expression, so we proceed on the assumption that Plaintiffs may invoke their right to expressive association.”); Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of NY (E.D.N.Y. 2006) 443 F. Supp. 2d 374, 392 (“[D]efendants do not dispute that the Fraternity is an expressive association, and this classification is reasonably supported.”), vacated on other grounds, (2nd Cir. 2007) 502 F.3d 136.

Those results make perfect sense. Just like Boy Scouts, Greek-letter organizations “seek  to transmit  a system of values” to their members. Dale 530 US at 650. Each plaintiff organization is driven by a mission statement and seeks to transmit values consistent with that mission to each of its members. For example, plaintiff Kappa Alpha Theta endeavors to “instill the values of charity, philanthropy and public service” in its members, and “provides young women with a value system that helps them make ethical choices . . . over the course of their lives.” Similarly, plaintiff Theta Xi aims “to provide a college home environment for its active members in which fellowship and alumni guidance lead to wholesome mental,  moral, physical, and spiritual growth.” (mission of Boy Scouts is to “install values in young people and, in other ways, to prepare them to make ethical choices over their lifetime”). The other plaintiff organizations similarly seek to transmit to their members the values necessary to make ethical choices over their lifetimes and to become engaged and productive members of society. As in Dale, it is “indisputable that an association that seeks to transmit such a system of values engages in expressive activity.” Dale, 530 US at 650.

In addition, just like the Jaycees in Roberts, each plaintiff organization “engage[s] in a variety of civic, charitable, lobbying, fundraising, and other activities worthy of constitutional protection under the First Amendment.” Roberts, 468 US at 626-27. For example, plaintiff Kappa Alpha Theta engages in multiple charitable endeavors, including providing mentors for abused and neglected children, donating prom dresses to young women in need, and volunteering at local preschools. Similarly, members of plaintiff Tau Kappa Epsilon (“TKE”) have raised money for St. Jude Children’s Research Hospital by creating an investment group managed by members, and have raised $130,000 for the Jack Jablonski BEL13VE in Miracles Foundation, which is inspired by a current USC TKE member who was paralyzed in a hockey accident. USC TKEs also conduct Regional Leadership Conferences, cultivate relationships with alumni in various policy changes. Other plaintiff organizations do the same. (Citations to the record and footnotes have been deleted.)

Kirkland and Ellis, one of the largest law firms in the world, has undertaken this case as a part of its firm wide pro-bono program. Attorneys from both the Los Angeles and Washington DC offices prepared the appellate brief on October 18, 2018. Lead on the case for the fraternal groups is R. Alexander Pilmer of the Los Angeles offices of firm, assisted by Jeffery S. Singer also of the L.A. office, and Michael D. Lieberman of the firm’s Washington D.C. office. They have succeeded in convincing the Appellate Court to give the case expedited consideration which means it could be argued before the end of the year, though more likely shortly after the new year.

The Court of Appeals has ordered USC file its brief by November 23rd and the Appellants must file their reply brief twenty days after USC files. The Court order concludes that “this appeal will be given priority consideration for purposes of scheduling oral argument.”

1. Omicron Chapter of Kappa Alpha Theta et. Al v. University of Southern California, Court of Appeal, Second Appellate District, Division 5, No. B 292907, Appellants Opening Brief.