Omicron Chapter of Kappa etc. v. University of Southern Cal. CA2/5

Filed 1/25/22 Omicron Chapter of Kappa etc. v. University of Southern Cal. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

OMICRON CHAPTER OF KAPPA B309916
ALPHA THETA SORORITY et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No.
BC711155)
v.

UNIVERSITY OF SOUTHERN
CALIFORNIA,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa A. Beaudet, Judge. Affirmed.
Kirkland & Ellis, R. Alexander Pilmer, for Plaintiffs and
Appellants.
Paul Hastings, J. Al Latham, Jr. and Elizabeth S.
Minoofar, for Defendant and Respondent.
 The sorority and fraternity plaintiffs in this case1 allege
defendant University of Southern California (USC) violated
Education Code section 94367 (section 94367), enacted as part of
what is commonly known as the Leonard Law, by instituting a
“deferred recruitment” policy that bars students from joining a
fraternity or sorority (but no other student organization) until
they have satisfied certain academic requirements. We consider
whether the trial court properly granted USC’s motion for
summary judgment—a question that ultimately turns on
whether the challenged policy is the product of USC’s genuine
academic judgment.

I. BACKGROUND
A. Student Organizations at USC
Plaintiffs, other Greek-letter organizations, and various
other 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 th[e] organization,” and
they may limit voting membership to students enrolled in a
specific major, but they must otherwise be open to all USC
students, staff, faculty, and alumni.

1
Plaintiffs are the Alpha Upsilon Chapter of Sigma Chi
Fraternity, the Gamma Tau Chapter of Beta Theta Pi Fraternity,
the Beta Sigma Chapter of Tau Kappa Epsilon Fraternity, and
the Omicron Chapter of Kappa Alpha Theta Sorority. Another
plaintiff fraternity, the Alpha Nu Chapter of Theta Xi Fraternity,
withdrew from this appeal.

2
 Greek-letter organizations are unique among RSOs in not
being required to accept all students who demonstrate support
for their purpose. They instead select members through the
“rush” process, which involves a week of social events followed by
a new member period when those students who receive and
accept offers of membership participate in additional social
events culminating in their initiation.

B. USC’s Academic Senate Twice Endorses Deferred
Recruitment, Which USC’s Student Government Body
Opposes
USC’s Academic Senate adopted resolutions endorsing a
policy of deferred recruitment for Greek-letter organizations in
1998 and 2015. As explained by Dr. Ginger Clark, president of
the Academic Senate from 2015 to 2016, the Academic Senate is
“a governing body that represents the faculty voice in governance
of the university.” The Academic Senate has no authority to
enact university policy, but it adopts resolutions that it forwards
to university administrators for consideration.
The 1998 resolution recognized Greek-letter organizations
have “attained a commendable academic standing
and . . . contributed to the social and intellectual life of
undergraduate students,” but emphasized “rush in the early
weeks of the fall semester distracts entering freshmen from
academic commitments . . . , may discourage them from exploring
the range of academic and living opportunities available at USC
(including residential colleges), and may inadvertently hinder
their full integration into the broader university community.”
The resolution urged the university to move rush from the fall to
the spring semester and “to explore ways to cushion fraternities

3
and sororities from any adverse financial effects that this change
might entail.”
Minutes from the meeting at which this resolution was
adopted (by an 11 to 10) vote reflect vigorous debate. Proponents
argued, among other things, that rush placed “enormous
pressures” on students that might impact their academic
progress and students should have an opportunity to
“acclimate[ ]” to university life before committing to a Greek-
letter organization. Opponents argued deferred recruitment
would limit students’ freedom and suggested faculty should not
interfere with “culture in an area that took time to develop.” In
the years immediately following the Academic Senate’s adoption
of this resolution, USC administrators did not make any changes
in university policy.
The Academic Senate returned to the topic in 2015,
however, and adopted another resolution, this time by a
unanimous vote. The 2015 resolution, like the earlier 1998
resolution, recognized the “long tradition of Greek life” at USC
and its role as “a valuable source of affiliation, socialization,
leadership development, as well as opportunities for community
service and philanthropy.” But five paragraphs of findings
followed, with the resolution ultimately advocating for adopting a
deferred fraternity and sorority recruitment policy at USC.
The Academic Senate noted “[a]lmost 45% of first-year
students pledge a Greek organization,” which, for men, “involves
seven weeks of new-member education on top of first-year
coursework,” and, for women, “means seven days of pledging
prior to enrollment in their first USC class . . . .” Faculty
reported “students missing class or coming to class exhausted,”
and the resolution emphasized “students who participate in

4
[r]ush on average have a lower GPA in their freshman year than
those who do not.”2 The Academic Senate found new students
may not be able to assess which Greek-letter organization is the
best fit for them, and students who immediately commit to
joining a Greek-letter organization “may be limiting their
exposure to other outlets” for social interaction and affiliation.
The Academic Senate further found “[m]any of [USC’s] peer
institutions have moved the initiation of . . . [rush] to the Spring
semester in order to give students more time to get acclimated to
university life,” citing more than twenty schools that had done so.
In deposition testimony, Dr. Clark explained that, prior to
the Academic Senate’s adoption of the 2015 resolution, “faculty
were frustrated that we had not done anything about the
problems that we see each year with regard to our youngest
students during fall rush.” Faculty stated “their attendance rates
went down during the rush period,” students came to class late
and fell asleep in class, and “there were reports of students
coming to class still intoxicated from the night before.” When
faculty reached out to these students, “the students would talk
about being involved in the rush process.” Faculty members were
also concerned “about the impact on brand-new students who

2
In her deposition, Dr. Clark explained the Academic Senate
relied on “what the literature said about students who—during
the period of rush that their GPA tends to fall off . . . .” The
Academic Senate did not review data suggesting this effect was
diminished when rush is delayed, but Dr. Clark explained they
were “acting on . . . the idea that[ ] if students had more time to
focus on developing their academic identity at the university,
they would establish better skills; they would establish better
relationships with faculty in the classroom, which could increase
their motivation for . . . performing well in the classroom.”

5
were rejected by either the sororities or the fraternities,” and
“many facult[y members] shared stories about students coming to
them devastated after they didn’t get in, crying in their offices.”
According to Dr. Clark, this issue came up “repeatedly among the
faculty in the senate meetings,” with faculty stating they “on
multiple occasions, had female students coming to them in tears,
distraught,” because “their first experience associated with USC
was that they don’t belong here.” These new students had no
“exposure to any other significant experiences on campus in
terms of other social organizations or other support networks.”
The Academic Senate’s adoption of the 2015 resolution
prompted USC’s undergraduate student government body to
adopt its own contrary resolution opposing deferred recruitment.
The student government’s resolution cited, among other things,
survey results indicating nearly all members of Greek-letter
organizations at USC felt these organizations “helped them
assimilate to the University” and most members belonged to at
least one other organization. Bodies representing various Greek-
letter organizations also prepared “reform plans” to address the
Academic Senate’s concerns. One of these groups, the
Interfraternity Council, proposed an “alternative to deferred
recruitment” in the form of rules including limits on the number
of weeks and hours per week required for new member education,
a “reaffirmed” commitment against hazing, prohibition of alcohol
at new member events, and improved education regarding
mental health and sexual assault.

6
 C. USC’s Student Affairs Office Considers Deferred
Recruitment
USC’s Student Affairs Office began considering whether to
implement a deferred recruitment policy beginning no later than
2014. Dr. Monique Allard, the Senior Associate Vice Provost for
Student Affairs, helped draft “numerous memoranda on this
topic.” Among other things, the memos explained over twenty
peer institutions had “some form of deferred recruitment” and
reviewed a 2015 study indicating that approximately two-thirds
of on-campus sexual assaults at USC took place at a fraternity or
sorority house.
USC’s residential college program, which groups students
according to their academic interests and assigns resident faculty
to provide academic and extracurricular enrichment, was
discussed in connection with the question of whether to move to
deferred recruitment.3 A February 2014 memorandum from Dr.
Ainsley Carry, then Vice President for Student Affairs, sought
“approval to initiate conversations with stakeholder groups to
defer fraternity and sorority recruitment of first-year students

3
In a June 2016 report, a committee formed to recommend
changes to the program noted that, “[b]eginning with the Dean’s
Hall of the 1980’s, USC has experimented with residential
colleges. These experiments have been guided by the belief that
education extends beyond the formal classroom and, therefore,
that a residential college should be seen as an important site for
learning.” A proposed “redesign” of the residential college
program coincided to some degree with the development of USC
Village, which would add over 2,600 residential spaces for
undergraduates and “ensure [USC’s] ability to house students on
campus for at least two years and make it possible for them to
form more long-term connections . . . .”

7
from the fall to spring term.” Dr. Carry identified “the Greek-
recruitment process” as “the most significant threat to the
success” of the residential college program: “Although Greek life
offers a number of important functions to a university
community . . . , the new member recruitment timing and process
can be disruptive to students’ early development in college.
Approximately 1,000 of the incoming class of 2,900 will
participate in sorority or fraternity recruitment; that is 1,000
first-year students distracted from the Residential College
program.”
Dr. Carry’s analysis of deferred recruitment was not
limited to its potential impact on the residential college program.
In the same February 2014 memorandum, Dr. Carry discussed
proponents’ arguments that such a policy would (1) afford new
students the opportunity to “concentrate on solidifying their
academic integration,” emphasizing that “[a]lthough the overall
Greek GPA is higher than the overall University [GPA], the
freshman Greek GPA is below the overall freshman GPA”; (2)
reduce unnecessary stress; (3) reduce social pressure to consume
alcohol and provide “a one semester buffer for students to learn to
manage their new found ‘personal freedom’”; and (4) provide
“greater opportunity to transition into the demands of college life
and gain a better perspective on which organization is the best fit
for them.” Dr. Carry recognized the “highly delicate” nature of
the issue and discussed several potential arguments in opposition
to such a policy, including the paucity of “[f]ormal research on the
effect of deferred recruitment” on academics, alcohol abuse,
hazing, assault, and student development; the possibility that
such a policy only delays problems; the prospect of unregulated
“underground recruitment”; and the Greek-letter organizations’

8
impaired ability to recruit, train, and retain members. Dr.
Carry’s memo also acknowledged the argument that “[t]he ability
to freely associate is a right guaranteed to students via the U.S.
Constitution. . . .”
Dr. Carry raised many of the same considerations in a
memorandum and presentation materials distributed to USC
administrators in October 2015. In addition to concerns about
students’ academic performance and mental and physical well-
being, Dr. Carry emphasized schools where residential colleges
had been successful (Princeton University, Stanford University,
Rice University, Vanderbilt University, University of Chicago,
and University of Miami) had deferred recruitment policies. Dr.
Carry supported the arguments in favor of deferred recruitment
with citations to academic literature indicating “the recruitment
and pledge semesters have a negative effect on academic
performance,” participation in Greek-letter organizations “often
limits [first-year] students’ involvement and relationships with
diverse populations of other students,” and “[d]eferring
recruitment allows new students time to adjust and acclimate to
campus life and culture prior to making the large commitment of
time and energy to a single Greek-letter organization.”

D. USC Announces a Deferred Recruitment Policy and
Continues to Study Its Anticipated Impact Prior to Its
Effective Date
In a letter to the “USC Community” sent in September
2017, Dr. Carry announced the university would be implementing
a deferred recruitment policy after consultation with Greek-letter
organizations and a review of feedback from parents, alumni, and
students. Dr. Carry’s letter acknowledged “Greek-letter

9
organizations enhance the student experience at USC by
providing spaces for personal connection, brotherhood/sisterhood,
academic support, and philanthropic engagement.” He
emphasized, however, that freshman year “is the toughest year of
the transition to college life as students experience the most
social and academic challenges” and he noted a “number of
[USC’s] peer institutions have implemented policies that support
first-year students by allowing them time to acclimate to the
university’s academic and social climate before participating in
Greek-letter organizations.” According to Dr. Carry’s letter, “the
University . . . concluded that the benefit of allowing new
students one semester to acclimate to USC academics and social
life far outweigh the benefits of not making this policy change.
Therefore, effective Fall 2018, all USC students who wish to
participate in Greek organization recruitment must have
completed a minimum of 12 academic units, and [must also have]
a minimum USC grade point average of 2.5.”4 (Emphasis in
original omitted.) Dr. Carry’s letter acknowledged that
“[s]pecifics remain on how to implement this policy change,” and
a task force chaired by Dr. Allard with representatives from
Greek-letter organizations and other student groups would begin
meeting the following month.
The Student Affairs Office continued to study the impact of
deferred recruitment during the nearly one-year period between
Dr. Carry’s letter and the policy’s effective date. Among other
things, the appellate record includes a compilation of emails from
administrators at other schools that Dr. Carry contacted for

4
As indicated in Dr. Carry’s letter, students will generally
complete 12 academic units in one semester.

10
comment regarding their deferred recruitment policies. 5 It also
includes a report Dr. Carry requested comparing the grade point
averages of USC fraternity pledges in fall 2017 to those of all
male students. For freshmen in these groups, the average grade
point average for male pledges was 2.96 compared to 3.19 for all
male students. Across all class years, the average grade point
average was 3.09 for male pledges and 3.33 for all male students.6

E. Several Fraternities and One Sorority Sue
1. The pleadings and a request for injunctive relief
In June 2018, plaintiffs filed a complaint alleging the
deferred recruitment policy violates section 94367. In pertinent
part, that statute 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

5
Four of the five responses endorsed the policy, and the fifth
indicated there was no data regarding the success of the policy
because it had been in place for decades. One of the responses
warned that a possible unintended consequence of deferred
recruitment was “even more parties” in the fall as organizations
tried to “put themselves at an advantage for spring recruitment.”
6
In discovery, plaintiffs obtained data allowing for
comparisons of “all Greek” and “all undergraduate” grade point
averages. These figures are comparable in most recent years—
the “all Greek” grade point average is sometimes higher than the
“all undergraduate” grade point average—but the data are not
broken down by class year.

11
First Amendment to the United States Constitution or Section 2
of Article I of the California Constitution.” (§ 94367, subd. (a).)
Plaintiffs’ complaint alleged they had standing “to assert
claims for violation of [section 94367] on their own behalf, and on
behalf of their individual members.” They alleged deferred
recruitment infringes their First Amendment right “to associate
freely with those they choose” and, notwithstanding USC’s stated
purpose of ensuring students have one semester to acclimate to
USC academics and social life, the policy is “blatantly
discriminatory” because no other RSOs are subject to it.
Plaintiffs sought preliminary and permanent injunctive relief and
a declaratory judgment that the deferred recruitment policy
violates their First Amendment rights as protected by section
94367.
Shortly after filing the complaint, plaintiffs moved to
preliminarily enjoin the deferred recruitment policy. (Omicron
Chapter of Kappa Alpha Theta Sorority v. University of Southern
California (May 1, 2019, B292907, B294574) [nonpub. opn.]
(Omicron I).) The trial court denied the motion because plaintiffs
had not demonstrated a likelihood of success on the merits. The
trial court later sustained USC’s demurrer to the complaint
without leave to amend.

2. Previous appeal
Plaintiffs appealed the trial court’s orders denying the
preliminary injunction and dismissing the action, and we
reversed. (Omicron I, supra, B292907, B294574.)
We held that section 94367’s protection of “speech or other
communication” includes expressive association because such
activity is “‘closely linked’ to First Amendment free speech rights

12
and, indeed, partly ‘“implicit in”’ such speech rights.” (Ibid.,
citing Christian Legal Soc. Chapter of the Univ. of Cal., Hastings
College of Law v. Martinez (2010) 561 U.S. 661, 680 (Christian
Legal); Healy v. James (1972) 408 U.S. 169, 181.) We
emphasized, however, that “[t]here are First Amendment
considerations on both sides in this case.” (Omicron I, supra,
B292907, B294574.) On plaintiffs’ side, there is section 94367’s
statutory protection of plaintiffs’ members’ expressive association
interests—specifically, their right to determine their
membership. (Ibid., citing Yu v. University of La Verne (2011)
196 Cal.App.4th 779, 790 [holding section 94367 does not “create
or expand constitutional rights”].) On USC’s side “is the
constitutional First Amendment deference owed to a university’s
academic decisions.” (Omicron I, supra, B292907, B294574.)
We held the significant effect or serious burden that is
necessary to establish a violation of expressive association rights
must be “strictly police[d]” where “a university’s First
Amendment interest in freedom to make genuine academic-based
judgments as to the performance of its students is implicated.”
(Omicron I, supra, B292907, B294574.) Although the alleged
burdens on plaintiffs’ expressive associational rights were
“insufficiently substantial to make out a section 94367 claim”
when “stacked against the academic rationale that appears to
animate the deferred recruitment policy,” we concluded the trial
court erred in sustaining USC’s demurrer because plaintiffs
alleged the policy was animated by viewpoint discrimination
rather than a genuine academic judgment.7 (Ibid.) We remanded

7
We came to the same conclusion applying a limited public
forum analytical framework. Under this approach, the deferred
recruitment policy violates plaintiffs’ expressive association

13
for factual development so plaintiffs would have an opportunity
to make their case.

3. Summary judgment
On remand, following an opportunity for discovery, USC
moved for summary judgment. It argued there were no triable
issues as to whether the deferred recruitment policy was the
product of a genuine academic judgment or as to whether it was
motivated by hostility to any viewpoint plaintiffs espouse. In
opposition, plaintiffs challenged USC’s academic judgment as
based on anecdote and speculation and argued the policy
discriminates based on viewpoint because it promotes USC’s
residential college program at the expense of Greek-letter
organizations.
The trial court granted USC’s motion. As to plaintiffs’
argument that USC’s academic judgment was based on
questionable data and assumptions, the trial court reasoned that
although “[p]laintiffs may find fault with the robustness of this
evidence,” their argument “that all of the data and information
on which USC relied to make the decision to adopt deferred
recruitment was not good enough” did not raise a triable issue as
to whether the policy was based on a genuine academic judgment.
Moreover, the bare fact that the deferred recruitment policy
singled out Greek-letter organizations did not, in the court’s view,

rights only if it is unreasonable in light of the purpose served by
the RSO program or targets plaintiffs based on their viewpoint.
(Omicron I, supra, B292907, B294574, citing Christian Legal,
supra, 561 U.S. at 679, 685.) Although plaintiffs failed to allege
unreasonableness, we held they must be given an opportunity to
prove their allegation that the deferred recruitment policy is
viewpoint-based.

14
raise a triable issue as to viewpoint discrimination. Evidence
suggesting the Greek-letter organizations were singled out as a
threat to the residential college program did not help plaintiffs
because the perceived threat did not stem from any
“viewpoint, . . . motivating ideology, . . . opinion,
or . . . perspective.”

II. DISCUSSION
As we recognized in Omicron I, supra, “universities occupy
a special niche in our constitutional tradition.” (Grutter v.
Bollinger (2003) 539 U.S. 306, 329 (Grutter).) By virtue of section
94367, we permit inquiry into whether university policies are
genuinely rooted in academic considerations so as to police the
line prohibiting disfavored treatment of those espousing
unpopular views—because of those views. But respect for
universities’ First Amendment interest in “educational
autonomy” (ibid.) means we cannot superimpose our own views
about how a university should best fulfill its academic mission
when a university makes a bona fide academic determination.8
We instead look to see if the facts reveal a good faith exercise of
academic judgment even when, as is often the case with
university-based endeavors, available information may be
imperfect.

8
As we said in Omicron I, and as plaintiffs concede in this
appeal, the term “academic” includes “the broad range of student
educational experiences and outcomes with which a university
may be legitimately concerned, not simply a narrow grade point
average statistical analysis. (See, e.g., Christian Legal, supra,
561 U.S. at p. 686; Grutter, supra, 539 U.S. at p. 328.).”

15
 The undisputed evidence establishes USC’s deferred
recruitment policy is a product of a genuine academic judgment
and, as such, the burden the policy places on plaintiffs’ expressive
association rights is insufficiently serious to run afoul of section
94367. (See, e.g., Boy Scouts of America v. Dale (2000) 530 U.S.
640, 658-659 (Dale); Roberts v. United States Jaycees (1984) 468
U.S. 609, 626-627 (Roberts).) Plaintiffs argue that a reasonable
fact-finder could nonetheless determine USC’s academic rationale
is a mere pretext for viewpoint discrimination (though plaintiffs
avoid identifying in their appellate briefing any viewpoint to
which USC might be hostile) because no other RSOs are subject
to the deferred recruitment policy. As we will explain, this
argument fails because there is undisputed evidence that
fraternities and sororities are unlike other RSOs—including by
virtue of the unique privilege they have to reject like-minded
students who aspire to be members, which naturally results in a
far more intensive and immersive recruitment process. Plaintiffs’
alternative contention that USC sought to suppress plaintiffs’
viewpoint as a “threat” to the residential college program also
lacks merit. USC’s preference for the residential college
program—an academic initiative of the university—is not, as
plaintiffs contend, analogous to a preference for one student
organization over another.

A. Standard of Review
“‘“‘A trial court properly grants a motion for summary
judgment only if no issues of triable fact appear and the moving
party is entitled to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c); [citation].) The moving party bears the
burden of showing the court that the plaintiff “has not

16
established, and cannot reasonably expect to establish,”’ the
elements of his or her cause of action. [Citation.]” [Citation.] We
review the trial court’s decision de novo, liberally construing the
evidence in support of the party opposing summary judgment and
resolving doubts concerning the evidence in favor of that party.’
[Citation.]” (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705.)

B. The Deferred Recruitment Policy Is a Product of
USC’s Genuine Academic Judgment
Courts have long recognized, in a variety of contexts, that
universities’ academic decisions are entitled to judicial deference.
This deference flows, in part, from the specialized knowledge that
informs many academic decisions. (See, e.g., Christian Legal,
supra, 561 U.S. at 686 [“[J]udges lack the on-the-ground
expertise and experience of school administrators”]; Bd. of
Curators of Univ. of Mo. v. Horowitz (1978) 435 U.S. 78, 92
[“Courts are particularly ill-equipped to evaluate academic
performance”]; McGill v. Regents of University of California
(1996) 44 Cal.App.4th 1776, 1788 [noting, in review of tenure
decision, “it is far beyond the expertise of this, or any, court to
evaluate the significance of [the petitioner’s] research or writings
in the area of probability theory or to judge the efficacy of his
teaching”].)
Our deference to academic decisions is not, however, simply
a recognition of the limits of judicial competence. As we
emphasized in Omicron I, universities occupy a “special niche in
our constitutional tradition” and the high court’s cases
“recognize[ ] a constitutional dimension, grounded in the First
Amendment, of educational autonomy.” (Grutter, supra, 539 U.S.
at 329.) Academic freedom is “‘a special concern of the First

17
Amendment,’” and “[w]hen judges are asked to review the
substance of a genuinely academic decision, . . . they should show
great respect for the faculty’s professional judgment.” (Regents of
University of Michigan v. Ewing (1985) 474 U.S. 214, 225-226
(Ewing).) Such a decision should not be invalidated “unless it is
such a substantial departure from accepted academic norms as to
demonstrate that the person or committee responsible did not
actually exercise professional judgment.”9 (Id. at 225.)
Academic decisions are not “confined to the classroom.”
(Christian Legal, supra, 561 U.S. at 686.) They include the broad

9
When First Amendment rights are at issue on both sides—
i.e., when a school’s First Amendment interest in academic
autonomy runs up against students’ or teachers’ constitutional
speech rights—the high court has indicated that academic
judgments are owed “decent respect” as opposed to the “great
respect” prescribed in Ewing. (Christian Legal, supra, 561 U.S.
at 687.) In Christian Legal, a Christian-centered law school
extracurricular organization asserted constitutionally-based First
Amendment rights. (Id. at 673.) In that context, the law school’s
decisions about the character of its registered student
organization program were due “decent respect,” but the law
school was owed “no deference” on the question of whether its
policies were reasonable in light of the purpose of its student
group program. (Id. at 686-687.) As we explained in Omicron I,
plaintiffs in this case “do not (and cannot) directly assert
constitutional free speech rights—their claim arises only by the
grace of state statute—and that renders Christian Legal’s
pronouncement on deference inapplicable. Moreover,
the . . . [challenged] rules in Christian Legal were not facially
predicated on judgments about student academic performance in
the way that USC’s deferred recruitment policy (at least 12 units
and at least a 2.5 GPA) very much is.” (Omicron I, supra,
B292907, B294574.)

18
range of student educational experiences and outcomes with
which a university may be legitimately concerned.
“[E]xtracurricular programs are, today, essential parts of the
educational process. [Citation.]” (Ibid.) The maintenance of a
registered student organization program, in particular, which
serves as “a mechanism through which [a school] confers certain
benefits and pursues certain aspects of its educational mission”
(id. at 702 (conc. opn. of Stevens, J.)), is a core academic concern.
With these principles in mind, we held in Omicron I that
where a university’s First Amendment interest in freedom to
make genuine academic judgments is implicated, courts must
strictly police the showing of a “‘significant[ ] effect’” or “‘serious
burden[ ]’” necessary to prove a violation of expressive association
rights. (Omicron I, supra, B292907, B294574, citing Dale, supra,
530 U.S. at 656; Roberts, supra, 468 U.S. at 626-627.) We further
held that the cognizable impacts the deferred recruitment policy
allegedly has on plaintiffs’ expressive association rights—chiefly
in the form of constraints on their ability to train members and
the financial consequences of fewer members choosing to live in
fraternity or sorority housing—satisfy this standard only if the
policy is not a product of USC’s genuine academic judgment. 10
(Omicron I, supra, B292907, B294574.)

10
Refusing to acknowledge that their challenge to the
deferred recruitment policy implicates academic freedom and
educational autonomy, plaintiffs insist the issues in this case
must be analyzed under the limited public forum framework
discussed in prior cases, including Christian Legal, supra, 561
U.S. 661. (See id. at 679, 695 [restrictions on speech activity in a
limited public forum must be reasonable in light of the purpose
served by the forum and may not discriminate against speech on
the basis of viewpoint].) Because we are not convinced the

19
 The undisputed evidence demonstrates USC adopted its
deferred recruitment policy based on academic concerns. This is
evident on the very face of the policy itself: although the policy is
often understood in shorthand fashion as prohibiting recruitment
during a student’s first semester, the policy more precisely
understood imposes an undisputedly academic threshold, namely,
completion of 12 units with at least a 2.5 grade point average.
The use of these indisputably academic criteria (particularly the
grade point average threshold) for joining a sorority or fraternity
is, of course, strong evidence that the criteria were set for bona
fide academic reasons.
Further demonstrating the genuine academic character of
the recruitment policy change are the undisputed facts
concerning the Academic Senate and the Student Affairs Office.
The Academic Senate debated deferred recruitment on multiple
occasions over the last several decades. In the most recent
instance, when it unanimously approved a resolution supporting
deferred recruitment, the Academic Senate made formal findings
regarding fall recruitment’s impact on students’ grades, students’
exposure to a variety of extracurricular activities, and the policies
of peer institutions. As related by Dr. Clark, faculty members
also discussed reports of students coming to class tired or
intoxicated (or not coming at all) during the fall rush period and
students suffering emotionally when they were not invited to join

limited public forum test appropriately balances USC’s rights,
grounded in the First Amendment, against the statutory rights
conferred by section 94367 (and because the result we reach
would be no different under the limited public forum rubric), we
structure our discussion using what we find to be the appropriate
analytical framework.

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their preferred Greek-letter organization. The Student Affairs
Office endorsed deferred recruitment based on academic
literature suggesting recruitment and pledge semesters impact
students’ grades; USC’s comparisons of first-year grades (i.e., Dr.
Carry’s pre-announcement comparison of the “freshman Greek
GPA” to the “overall freshman GPA” plus his post-announcement
comparison of USC fraternity pledge grades to grades of all male
students); and other indicia of student learning, including new
students’ physical and emotional well-being and their ability to
explore the campus’s full range of student organizations. The
Student Affairs Office also concluded deferred recruitment would
contribute to the success of USC’s residential college program,
noting that peer schools with successful programs do not allow
Greek-letter organizations to recruit first-semester students.
Then, in the period between announcing the policy and its
effective date, the Student Affairs Office considered feedback
from other schools that adopted deferred recruitment.
Plaintiffs, however, assert the deferred recruitment policy
is not an exercise of genuine academic judgment because the
Academic Senate and Student Affairs Office made their decisions
based on incomplete or incorrect facts. Plaintiffs specifically
question whether any of the Academic Senate’s considerations
were based on “admissible evidence” and argue, for instance, that
the Academic Senate supported deferred recruitment based only
on “stale anecdotes” and “collected no data about students’ GPAs
and collected no data about how many times students supposedly
were distraught or in tears because they were not accepted by a
sorority.” Academic Senate proceedings and USC administrator
deliberations are not, however, governed by the Evidence Code,
and the deference owed to genuine academic judgments is not

21
conditioned on their being made in a manner befitting a search
warrant affidavit. A university’s decisions about what to teach,
who may be admitted to study, and how they should be taught
may in time be revealed to be misguided or mistaken, but the key
for our purposes is whether the considerations apparently
animating a decision are of a type so unusual for a university to
consider, so trivial, so ignorant of counterpoints, or so post-hoc as
to suggest the existence of a material dispute of fact as to
whether something other than a judgment about how to best
educate its students was at work.
There is no such evidence on the summary judgment record
here. For example, the Academic Senate’s consideration of
academic literature regarding the impact of rush on student
grades is precisely the type of evidence one would expect a
university to consider and plaintiffs far overstate the matter in
asserting the literature has “nothing to do” with academics at
USC.11 Similarly, contrary to plaintiffs’ assertion, Dr. Clark’s
deposition testimony acknowledging that “alcohol consumption
among first-year students is not limited to those who are involved
in the Greek system” does not prove USC’s concern about
excessive drinking at events hosted by Greek-letter organizations

11
Plaintiffs’ contention that the Academic Senate “knew the
USC Greek community performed better academically than
USC’s overall student body” is not supported by the record.
Plaintiffs cite a 2015 memorandum from Dr. Allard to Dr. Carey
noting that “[a]t USC the overall Greek GPA is reportedly higher
than the general undergraduate student population,” but
“‘pledge’ semester performance has [not] yet been evaluated.”
Plaintiffs cite no evidence that this memorandum was presented
to the Academic Senate, and it does not refute the broader
academic literature regarding rush-semester grades in any case.

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(based, among other things, on past disciplinary actions and the
disproportionate number of “alcohol transports” from fraternity
houses compared to other campus spaces) is somehow
disingenuous. Plaintiffs also argue “[t]here is no data”
supporting USC’s view that its policy will “alleviate any of the
purported issues.” The idea that academic judgments can be
grounded only in quantitative data is unfounded (indeed, were it
otherwise, USC’s humanities program may be in trouble). But
here, USC did consider a significant amount of data: academic
literature, practices and experiences at peer institutions
(including almost uniformly positive feedback from
administrators at these institutions that implemented a deferred
recruitment policy), grade comparisons, and reported faculty
experiences in the classroom.
Plaintiffs also argue sorority plaintiff Kappa Alpha Theta
(in contrast to the fraternity plaintiffs) has no history itself of
facilitating excessive drinking or enabling sexual assault.
Assuming this is true as an empirical matter, drinking and
sexual assault were not the sum total of the university’s apparent
concerns. The record also indicates, without dispute, that USC
considered the adverse effects of rejection on students—including
young women—soon after arriving on campus and the intensive
rush process that draws substantial time and attention away
from other pursuits and at times left students exhausted when
first beginning classes. Moreover, even if drinking and sexual
assault were the only concerns such that the deferred recruitment
policy could have been more narrowly tailored, the lack of such a
tight fit between means and ends is not the sort of gross defect
upon which a factfinder could rely to conclude some more sinister

23
motive was at work rather than a bona fide judgment that
deferred recruitment would be academically beneficial.
Plaintiffs also mount a procedural attack on the trial
court’s summary judgment ruling, arguing the facts recited in
USC’s separate statement of undisputed material facts are not
supported by the evidence. This too is unpersuasive. To take one
example, USC’s assertion that the deferred recruitment policy
was motivated in part by “several recent incidents of personal
injury or death that occurred at or after fraternity social events
at USC” cannot be discarded, as plaintiffs say, because there is
an “absence of specifics” about these incidents.12 To take another
example, Dr. Allard’s inability to recall any events between fall
2016 and fall 2017 that prompted USC to announce the deferred
recruitment policy does not create a triable issue as to the
asserted fact that “[i]n Summer 2017, following the death of a
fraternity member at Penn State due to new member hazing, Dr.
Carry indicated that he did not want USC to wait to act until
[USC] experienced a tragedy like that.” The asserted fact

12
Plaintiffs contend the memorandum cited as evidence of
this undisputed fact “says nothing whatsoever about ‘several’ or
even any ‘recent’ injuries.” That strikes us as nitpicking. The
2017 memorandum from Dr. Carry to the provost states “the
2015 [Association of American Universities] Climate Survey
demonstrates that a disproportionate number of sexual assaults
happened in Greek houses. Furthermore, the number of student
injuries or death associated with new member education
activities in Greek houses is unacceptable.” The appellate record
does not include a copy of the survey, but a letter announcing its
findings indicates it included data specific to USC. We
accordingly read Dr. Carry’s memorandum to imply there was—
or at least that he believed there was—more than one instance of
student injury or death documented in the climate survey.

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concerns Dr. Carry’s statements, which are memorialized in an
email in the appellate record.

C. There Is No Evidence of Viewpoint Discrimination
Notwithstanding our review of the evidence thus far, and
without identifying any viewpoint they hold to which USC is
hostile, plaintiffs maintain there is a triable issue as to whether
USC’s academic rationale for deferred recruitment is actually a
pretext for viewpoint discrimination.13 Plaintiffs suggest there is
no need for them to identify a disfavored viewpoint because the
fact that no other RSOs are subject to deferred recruitment
supports an inference that USC must have singled out Greek-
letter organizations based on some viewpoint.
Plaintiffs’ argument rests on a misreading of Christian
Legal, in which the Supreme Court held that a public law school’s
requirement that student organizations accept “all comers” (even
those who disagreed with the plaintiff organization’s core beliefs)
was viewpoint neutral. (Christian Legal, supra, 561 U.S. at 694-
695.) From the high court’s observation that “[i]t is . . . hard to
imagine a more viewpoint-neutral policy than one requiring all
student groups to accept all comers” (id. at 694), plaintiffs
somehow derive the rule that a school may single out student
organizations that do not accept all comers only if every other
student organization is required to accept all comers.

13
Plaintiffs argue in their opening brief that “USC may not
object to [plaintiffs’] mission statements,” but it is nonetheless
“hostil[e] to [plaintiffs’] expression of that viewpoint.” In the
context of assessing whether USC’s deferred recruitment policy is
viewpoint neutral, the distinction is illusory.

25
 Plaintiffs say, for instance, that at USC “the Young
Democratic Socialist club may exclude students who have joined
the USC College Republicans, and vice versa” and conclude from
this that there can be no viewpoint-neutral basis to prohibit first-
semester recruiting by Greek-letter organizations and not these
groups. But Christian Legal focused on the defendant law
school’s all-comers policy only because that was the policy
challenged in that case. The fact that USC does not require
RSOs to accept all comers does not place Greek-letter
organizations on the same footing as campus political groups.
While political groups and other RSOs are required to accept all
comers who demonstrate support for their organization’s purpose,
Greek-letter organizations are not. To the extent that plaintiffs
alone are entitled to exclude prospective members for non-
ideological reasons, the fact that other RSOs are not subject to
this policy does not mean viewpoint discrimination is afoot.
(Christian Legal, supra, 561 U.S. at 695-696 [“‘[T]he fact that [a
restriction] cover[s] people with a particular viewpoint does not
itself render the [restriction] content or viewpoint based’”].)
Just as important, this unique privilege given to Greek-
letter organizations at USC—they may freely reject even like-
minded aspiring members—has important practical implications:
their process of recruitment and indoctrination is necessarily
more intensive and immersive than other RSOs. (Otherwise, how
could they decide whom to reject and whom to admit?) This
undisputed fact provides a further basis for treating fraternities
and sororities differently than other RSOs and undercuts any
suggestion that a factfinder could find viewpoint discrimination
(whatever the viewpoint might be) based merely on the deferred
recruitment rules that apply only to Greek-letter organizations.

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 Plaintiffs also assert that Dr. Carry’s characterization of
Greek-letter organizations as a “threat” to USC’s residential
college program proves viewpoint discrimination. But the threat
that Dr. Carry described has nothing to do with the views of
Greek-letter organizations. There is no evidence, for instance,
Dr. Carry was alarmed that plaintiff Sigma Chi’s commitment to
the “three timeless principles” of “friendship,” “justice,” and
“learning” subverts competing values espoused by the residential
college program. In fact, at the very same time that Dr. Carry
characterized the perceived impact of fraternities and sororities
on the residential college program, he also praised Greek-letter
organizations’ contributions to the university community.
Nothing in the appellate record suggests plaintiffs and their
members are prohibited from discussing their values with first-
semester students in a non-recruitment context. Plaintiffs’
unrestricted freedom to interact with second-semester students
with a satisfactory academic record further underscores that
deferred recruitment is unrelated to any viewpoint they hold. In
context of the full record, the “threat” comment is a (perhaps
inartful) proxy for all we have already summarized: the
university’s judgment about the outsized, and in some respects
unique, impacts that fraternities and sororities have on learning
by students when they first arrive on campus.
There is also no merit to plaintiffs’ suggestion that USC’s
interest in the success of its residential college program is
tantamount to a preference for one category of RSOs over
another. Plaintiffs’ argument that USC may not “license one side
of a debate to fight freestyle, while requiring the other to follow
Marquis of Queensberry rules” (R.A.V. v. St. Paul (1992) 505 U.S.
377, 392) imagines a debate where there is none. The residential

27
college program is not just another student organization, but a
university initiative with an academic focus. Regulating Greek-
letter organizations’ recruitment practices to promote the success
of the residential college program is no more viewpoint-oriented
than promoting attendance during classes or instituting a
hypothetical ban on RSOs holding mandatory meetings during
finals week. USC’s determination that Greek-letter
organizations distract students from the residential college
program to a degree that other RSOs do not is a legitimate
exercise of academic judgment.

DISPOSITION
The judgment is affirmed. USC is awarded its costs on
appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.

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