Fraternity members
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[Editor's note: This story originally was published by Real Clear Education.]
By John Hirschauer
Real Clear Education
Public colleges and universities are generally bound by the federal and state constitutions in ways that private schools are not. In California, however, a state law popularly known as the “Leonard Law” prohibits non-religious private schools from disciplining students for speech that would otherwise be protected by “the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.” Controversy has arisen in recent years over whether the Leonard Law also protects the free-association rights of students at California’s private universities.
The dispute began in 2018 when the University of Southern California, a private university, implemented a deferred-recruitment policy for Greek-life organizations. According to the policy, students who wished to participate in Greek-organization recruitment were required to complete “a minimum of 12 academic units” and maintain “a minimum USC grade point average of 2.5,” effectively disqualifying first-semester freshmen. Ainsley Carry, USC’s then-vice president of student affairs, wrote that the policy would give students “time to acclimate to the university’s academic and social climate.”
Carry was not always willing to restrict students’ associational freedoms in pursuit of such goals. In a 2014 memo, Carry argued that “the ability to freely associate is a right guaranteed to students via the U.S. Constitution. Placing restrictions on when and who fraternal groups are allowed to recruit infringes on the rights of all students.” By 2018, he had changed his mind just as the university had finished a new residential complex for freshmen.
Greek groups pushed back on the deferred-recruitment policy in court. In July 2018, four USC fraternities and one sorority filed a lawsuit against the university, alleging the deferred-recruitment policy violated students’ constitutional rights. They disputed USC’s claim that the policy would improve freshmen students’ academic performance and claimed that such arguments shouldn’t matter, anyway, in a dispute over constitutional freedoms.
“Even if a first-year sorority or fraternity member has a lower GPA than other first-year students, this is not a justification for denying their constitutional rights to freely associate,” the plaintiffs argued.
Attorney Tim Burke of Fraternal Law Partners, a law firm that counsels Greek and other student-life organizations, wrote that the students’ claims of constitutional injury wouldn’t hold water in most other states but were more plausible in California because of its Leonard Law.
The case was initially dismissed in November 2018 by the Superior Court of Los Angeles County on the grounds that USC’s actions were not shown to be “disciplinary” in nature, as required by statute, and that the Leonard Law didn’t protect freedom of association.
“Just as it is clear from the plain language of the [Leonard] statute that it does not apply to the right of petition, it is equally clear from the plain language of the statute that it does not apply to the right of association since the statute says nothing about the right of association just as it says nothing about the right of petition,” the court ruled, citing its reasoning in an earlier case.
The L.A. court’s ruling was overturned the following year by California’s Second Appellate Court, which disagreed with its interpretation of the Leonard statute. The Second Appellate Court held that the law granted student groups the right to assert the “expressive associational interests of their members” and allowed the case to proceed. The court nevertheless cautioned the students that they were unlikely to prevail.
“We do not believe it is likely plaintiffs will prevail, but they must have their opportunity to make their case,” the court wrote in an unofficial opinion.
The court’s opinion proved prescient when Judge Teresa Beaudet of the L.A. Superior Court granted USC’s motion for summary judgment in October 2020, bringing the matter to a close.
What effect did the policy and associated legal battle have on students’ perception of their associational freedoms? In 2020, RealClearEducation commissioned a survey of more than 4,500 students involved in Greek organizations at over 500 colleges and universities around the country, including USC.
Some of the findings from USC respondents were striking. For example, 69 percent of surveyed Greek-involved students at USC felt that all student groups were not treated equally by the administration. Seventy-eight percent felt that there was at least some pressure for their group to be kicked off campus. Sixty percent were not confident in the future of Greek life on campus.
Given the relatively small sample size of USC students included in the survey (23), the results of the survey cannot be said to represent the experience of all Greek-involved students at the school. Still, argues Zach Greenberg of the Foundation for Individual Rights in Education (FIRE), the results point to the work that private universities like USC need to do to assure students that their rights will be protected.
“[M]any private universities promise their Greek organizations the same due process, expressive, and associational rights as other student groups. These universities should strive to uphold their clear, written commitments to protect the rights of their fraternities and sororities,” Greenberg said.
A USC spokesman declined to comment on this story but directed RealClearEducation to the “Diversity, Equity, and Inclusion” section of the university’s “Unifying Values” page. The university’s deferred-recruitment policy for Greek organizations remains in place.
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