California appellate court revives Greek orgs’ suit over USC’s deferred recruiting policy

May 9, 2019

A California appellate court has reinstated the lawsuit brought by several University of Southern California fraternities and a sorority over USC’s restrictions on their recruiting practices. The May 1 ruling allows the Greek organizations to argue that USC’s pledging restrictions violate their expressive associational rights under California state law.

The decision involves the Leonard Law, the California statute that prohibits state universities from disciplining students for expression protecting by the First Amendment. Specifically, the law prohibits all nonreligious California universities — public or private —  from disciplining students for “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 [or the California Constitution].”

The student groups here seek to apply the Leonard Law to USC’s ban on students joining a Greek organization until they attain a minimum of 12 academic units with a grade point average of 2.5. This deferred recruiting policy prevents first-semester freshmen and students with poor grades from joining these organizations, which the groups claim violates their right to freely associate with USC students. They argue that the policy harms their ability to recruit new members and develop leadership training, to the detriment of their expressive associational rights.

But their argument hit a major stumbling block when a lower court ruled in November 2018 that the Leonard Law doesn’t cover freedom of association. The appellate court reversed, holding for the first time ever that student expressive associational rights are protected by this law, as such rights are “‘closely linked’ to First Amendment free speech rights and, indeed, partly ‘implicit in’ such speech rights.” In finding that the Leonard Law covers freedom of association, the court breathed life into the groups’ lawsuit, affording them a chance to substantiate their allegations.

However, the appellate judges also cast doubt on the groups’ chances of doing so, ominously commenting that they “have a low but non-negligible likelihood of succeeding on the merits.”

The groups face an uphill battle against USC’s own First Amendment right to make “genuine academic judgment[s]” — under which USC’s deferred recruitment policy may fall.

Courts are typically loath to question or overturn decisions regarding students’ education.

The decision’s noteworthiness is twofold, good and bad.

First, the good: It’s the first application of the Leonard Law to freedom of association, a boon to students’ rights, especially student organizational rights, at California universities. California students can now better fight university attempts to stifle student organizational membership, leadership qualifications, and events under this new interpretation of the law, undoubtedly a positive development for these groups.

Second, the bad: The ruling forecasts an unduly expansive definition of a university’s “genuine academic judgment.” Courts have traditionally limited this classification to university decisions directly related to student academic performance, such as setting grading curves and degree requirements. The ruling’s insinuation that such judgment applies to a broad array of matters, such as when students can join campus organizations, sets a potentially dangerous precedent for insulating university violations of students’ rights from judicial vindication.

Fortunately, the decision’s revival of the groups’ claims should provide clarity on this issue.

We will keep our readers apprised of further developments in the case.


Schools:  University of Southern California