Kappa Alpha Theta Sorority at the University of Southern California (USC) and other Greek organizations and affinity groups are “recognized student organizations” (RSOs) at USC. Organizations with RSO status may, among other things, apply for university funding, reserve campus facilities for events, and use the university’s name and trademarks. RSOs may limit their membership to students who “demonstrate support for the purpose of the organization” but must otherwise be open to the USC community. Greek organizations, however, are not required to accept all students who demonstrate support for their purpose. They select members through the “rush process,” which involves a week of social events followed by a new member period when students who receive and accept offers of membership participate in additional social events culminating in their initiation.
USC’s Academic Senate adopted resolutions endorsing a policy for deferred recruitment for Greek organizations in 1998 and 2015. The Academic Senate is the faculty governing body of the university and has no authority to enact university policy, but adopts resolutions that it forwards to university administrators for consideration. The Academic Senate noted in their resolutions that first-year students pledging Greek organizations miss class and come to class exhausted or intoxicated due to their pledging commitments. Faculty members of the Academic Senate stated in several meetings that the pledging experience had negative impacts on student well-being. The Academic Senate also noted that moving rush and pledging to the spring semester of first year gives more students to acclimate to university life.
The undergraduate student body adopted its own resolution that opposed deferred recruitment following the Academic Senate’s 2015 resolution. Meanwhile, USC’s Student Affairs Office began considering whether to implement a deferred recruitment policy. Dr. Carry, the then Senior Associate Vice Provost for Student Affairs helped draft numerous memorandum on negative impact of fall semester rush and pledging. Dr. Carry cited a 2015 study indicating two-thirds of on-campus sexual assaults at USC took place at a fraternity or sorority house and that twenty peer institutions had some form of deferred recruitment. Dr. Carry also analyzed the impact of deferred recruitment on the residential college program and students’ mental and physical well-being.
In a letter to the USC community sent in September 2017, Dr. Carry announced that USC would be implementing a deferred recruitment policy after consultation from Greek organizations and other members of the USC community. The letter stated that allowing students one semester to acclimate to university academics and social life far outweigh the benefits of students who wish to participate in Greek life their first semester. Additionally, students who wanted to participate in Greek recruitment must complete 12 units and have a minimum GPA of 2.5, effective fall 2018. The Student Affairs Office continued to study the impact of deferred recruitment during the one-year period between Dr. Carry’s letter and the policy’s effective date.
In June 2018, several USC fraternities and one sorority sued USC alleging that the deferred recruitment policy violates Education Code Section 94367. That statute provides that “no private postsecondary 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 postsecondary 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 Greek organizations also alleged that the deferred recruitment policy violated their First Amendment right to “associate freely with those they chose” and the policy discriminates against them because no other RSOs were subject to it. After much litigation, USC moved for summary judgment, arguing that the deferred recruitment policy was the product of genuine academic judgment. The Greek organizations argued that the policy discriminates based on viewpoint because it promotes USC’s residential college program at the expense of Greek organizations.
The trial court agreed with USC. The Greek organizations appealed to the California Court of Appeal.
The Court of Appeal agreed with the trial court and held that USC’s deferred recruitment policy is a product of a genuine academic judgment and the burden the policy places on the Greek organization’s association rights is insufficiently serious to run afoul of Section 94367. The Court of Appeal explained that courts have long recognized that universities’ academic decisions are entitled to deference by the courts because of the specialized knowledge that informs universities’ many academic decisions. The Court of Appeal explained that universities’ educational autonomy is grounded in the First Amendment, and courts should respect their professional judgment. The Court of Appeal noted that academic decisions are not “confined to the classroom” but include a broad range of educational experiences and outcomes, such as extracurricular activities.
Here, the deferred recruitment policy was based on academic concerns. The Court of Appeal noted that the policy itself required that students who want to rush Greek organizations must complete 12 academic units and have at least a 2.5 GPA. Additionally, the Academic Senate resolutions made formal findings regarding the impact of fall recruitment on students’ grades and exposure to different extracurricular activities. Dr. Carry also noted the impact of fall recruitment of students’ grades.
The Court of Appeal also held that the fact that other RSOs are not subject to the deferred recruitment policy does not mean there was viewpoint discrimination against Greek organizations. The Court noted that Greek organizations may freely reject anyone and have a unique recruitment and initiation process – which provides a further basis for treating Greek organizations differently than other RSOs and undermined plaintiffs’ viewpoint discrimination argument.
The Court of Appeal also rejected plaintiffs’ argument that Dr. Carry’s characterization of Greek organizations as “threats” to USC’s residential life program was viewpoint discrimination. The Court of Appeal found there was no evidence that plaintiffs were prohibited from discussing their values with first-semester students in a non-recruitment context. Additionally, plaintiffs’ unrestricted freedom to interact with second-semester students further demonstrates that the deferred recruitment policy is unrelated to any viewpoint Greek organizations may hold.
Ultimately, the Court of Appeal agreed with the trial court and found in favor of USC.
Omicron Chapter of Kappa Alpha Theta Sorority v. Univ. of S. California (Cal. Ct. App. Jan. 25, 2022) 2022 WL 212339 (unpublished).
Note:
The First Amendment protects against viewpoint-based discrimination by the government. Viewpoint discrimination is discrimination because of the speaker’s specific ideology, opinion, or perspective. In this case, the plaintiffs were not challenging their constitutional free rights under the First Amendment because USC is not a government actor. Rather, the plaintiffs’ claim arose because of Education Code 94367, a state law that prohibits private postsecondary colleges and universities from instituting a rule that subjects a student to disciplinary sanctions solely based on conduct that would be protected speech under the First Amendment.
