Friday, May 3, 2019
Court of Appeal:
While Judgment of Dismissal of Challenge to Policy Barring Recruitment of First-Semester Students Is Reversed, Opinion Expresses Doubt That Plaintiffs Will Succeed on the Merits
By a MetNews Staff Writer
Four fraternities and a sorority at the University of Southern California have won reinstatement of their action challenging a new rule that bars first-semester students from being inducted, but the Court of Appeal for this district specified that the plaintiffs, on remand, may only assert their own rights, not those of the freshmen, none of whom joined in the action.
The opinion for Div. Five by Acting Presiding Judge Lamar Baker, filed Wednesday and not certified for publication, reverses a judgment of dismissal—but contains words of discouragement for the plaintiffs. Baker commented that they have “a low but non-negligible likelihood of succeeding on the merits” of their action.
The disputed “deferred recruitment” policy was announced in 2017 by USC’s vice president for student affairs, Ainsley Carry. He declared:
“[E]ffective Fall 2018, all USC students who wish to participate in Greek organization recruitment must have completed a minimum of 12 academic units, and [have] a minimum USC grade point average of 2.5.”
That effectively bars first-semester students from joining a fraternity or sorority.
Seeking a declaration that the policy is unlawful and preliminary injunction were Alpha Upsilon Chapter of Sigma Chi Fraternity, the Gamma Tau Chapter of Beta Theta Pi Fraternity, the Alpha Nu Chapter of Theta Xi Fraternity, the Beta Sigma Chapter of Tau Kappa Epsilon Fraternity, and the Omicron Chapter of Kappa Alpha Theta Sorority.
Los Angeles Superior Court Judge Patricia Nieto denied the preliminary injunction and sustained USC’s demurrer without leave to amend. In their appeal, the plaintiffs contended that Nieto “denied injunctive relief based on an untenable and text-defying interpretation of the Leonard Law.”
The action was predicated on that statute—Education Code §94367—which provides:
“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.”
Interpretation Termed ‘Untenable’
The plaintiffs argued in their opening brief:
“The Superior Court interpreted this language as applying only if USC implemented the policy itself as an act of discipline. That untenable interpretation defies the plain text of the statute—which prohibits both ‘mak[ing]’ and ‘enforc[ing]’ rules infringing on students’ First Amendment rights—and improperly narrows the scope of the Leonard Law’s protections.”
Baker agreed that Nieto misread the statute. He said:
“The trial court’s reading of the statute to demand proof that USC adopted the deferred recruitment policy as itself a disciplinary sanction for some past wrong does not square with the text of the statute. The key statutory terms are ‘make’ and ‘subjecting,’ which establish the prohibition imposed by section 94367 applies to university rules that have not yet been enforced but that render a student vulnerable to discipline for engaging in the conduct proscribed by the rule in question….The deferred recruitment policy…does just that.”
“The trial court’s alternative rationale was also faulty. Section 94367 provides protection for on-campus ‘speech or other communication.’…We believe this language, particularly the reference to ‘other communication,’ can encompass expressive associational activity.”
Nieto ruled that the plaintiffs did have standing. The plaintiff’s appellate briefs maintains that she was right, adding:
“On the merits, the Policy is subject to the Leonard Law because it threatens discipline against first-semester students who join Greek-letter organizations, as well as against Greek-letter organizations themselves. This threatened discipline burdens the associational rights of both first-semester students and Greek-letter organizations.”
Baker agreed that the plaintiffs had standing, but said that “the news for them on the standing front is not all good.” He noted that their “operative complaint and appellate briefs are rife with allegations of an asserted infringement on the associational rights of students who might want to join a fraternity or a sorority but are not yet members,” and said such allegations are inappropriate.
He explained that “the organizations have standing to assert the rights of their members” but not students who, by virtue of the “deferred recruitment” policy, are non-members.
Turning to the alleged harm to the organizations, themselves, he said:
“[A]ll of plaintiffs’ allegations concern what might be termed attenuated effects of the deferred recruitment policy, i.e., that recruited students will not be members for as long as they otherwise could have been during their college years and that plaintiffs will be financially worse off as a result of this truncated on-campus membership period. When stacked against the academic rationale that appears to animate the deferred recruitment policy, these alleged burdens on plaintiffs’ expressive associational rights would be insufficiently substantial to make out a section 94367 claim.”
Explaining the need for the matter to return to the trial court, Baker said:
“But plaintiffs’ complaint further alleges the deferred recruitment policy arises not from a genuine academic judgment but from viewpoint discrimination, i.e., that USC simply disapproves of plaintiffs as expressive associations and singles them out for disfavored treatment for that reason. That is an issue we cannot decide at the demurrer stage, and we therefore reverse and remand for necessary factual development. We do not believe it is likely plaintiffs will prevail, but they must have their opportunity to make their case. And because the trial court never made a finding as to the balance of harms, we do not ourselves resolve whether plaintiffs are entitled to an injunction in the interim; rather, the trial court must revisit the preliminary injunction question on remand, informed by this opinion.”
The case is Omicron Chapter of Kappa Alpha Theta Sorority v. University of Southern California, B292907.
R. Alexander Pilmer and Michael D. Lieberman of Kirkland & Ellis were attorneys for the sorority and the fraternities and J. Al Latham Jr. and Elizabeth S. Minoofar of Paul Hastings represented USC.
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