Expressive Discrimination: Universities’ First Amendment Right to Affirmative Action
My article Expressive Discrimination: Universities’ First Amendment Right to Affirmative Action has finally been published by the Florida Law Review. In these days of federal attacks on private DEI, maybe some private universities might find this useful as a strategy for fighting back against the Trump Administration! I’ll reproduce the Abstract and Introduction today, and continue to post the rest of the article next week. In the meantime (and especially if you want all the juicy footnotes), read the whole thing.
A note before starting: One of the earliest contributions to this literature was my co-blogger David Bernstein’s 2001 article in the William & Mary Bill of Rights Journal. Another was David Geary’s 2004 student note in The University of Chicago Law Review. Aside from that, there hasn’t been much. A couple of articles were written more or less simultaneously with (and independently from) my article: Kent Greenfield’s 2024 article in the American Journal of Law & Equality, and Part III of Taylor Barker’s 2024 essay in the Stanford Law Review.
Abstract
In the wake of Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, affirmative action proponents should pursue a First Amendment approach. Private universities, which are speaking associations that express themselves through the collective speech of faculty and students, may be able to assert an expressive association right, based on Boy Scouts of America v. Dale, to choose their faculty and students. This theory has been recently strengthened by 303 Creative LLC v. Elenis.
I discuss various complexities and counterarguments: (1) Race is not different from sex or sexual orientation for purposes of the doctrine. (2) The market context may not matter, especially after 303 Creative. (3) The conditional-federal-funding context does give the government more power than a simple regulatory context; the government will still be able to induce race-neutrality by the threat of withdrawing federal funds, but the unconstitutional conditions doctrine precludes draconian penalties such as withdrawing all funds from the entire institution based only on affirmative action in some units. (4) This theory doesn’t apply to public institutions.
I also explore the potential flexibilities of this theory, based on recent litigation. The scope of the Boy Scouts exception might vary based on (1) what counts as substantial interference with expressive organizations, (2) what counts as a compelling governmental interest, and, most importantly, (3) what it takes for activity to be expressive.
Introduction
June is always a big month for Supreme Court watchers, but the last two days of June 2023 were more interesting than usual for constitutional and civil rights law. In one case, the Court made race-conscious affirmative action—which had long been only grudgingly accepted—even more difficult. But the decision in another case paves the way for an argument that private universities have a First Amendment right to engage in affirmative action.
On June 29, 2023, the Supreme Court decided Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, cutting back on the legality of race-conscious affirmative action in universities and all but overruling Grutter v. Bollinger. This was both a statutory and a constitutional opinion: all universities that accept federal funds are governed by Title VI of the Civil Rights Act of 1964; public universities are also governed by the Equal Protection Clause. But the two have been interpreted to impose identical standards, so the distinction didn’t make much practical difference.
The very next day, the Court decided 303 Creative LLC v. Elenis. Lorie Smith, a website designer, decided to enter the wedding-website business; she didn’t want to create websites promoting gay weddings or otherwise contradicting her beliefs, but that could have opened her up to prosecution under the Colorado Anti-Discrimination Act. The Supreme Court held that the statute couldn’t be applied to force her to create websites she disagreed with. A website is just words and images—”pure speech.” If the state made Smith create a website for a gay marriage—
Article from Reason.com
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