Expressive Discrimination: Universities’ First Amendment Right to Affirmative Action — Part 2
Last week, I started blogging about my new article Expressive Discrimination: Universities’ First Amendment Right to Affirmative Action, just 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! If you want to see the PDF with all the juicy footnotes, read the whole thing.
I. How to Be Like the Boy Scouts
A. The Prima Facie Case
The Boy Scouts revoked assistant scoutmaster James Dale’s adult membership in the Boy Scouts when it found that he was gay. It explained that the Boy Scouts “specifically forbid[s] membership to homosexuals.” Dale sued, and the state courts found that such discrimination violated New Jersey’s public accommodations statute. Nonetheless, the Boy Scouts won: the Supreme Court held that applying the statute that way violated the Boy Scouts’ expressive-association right.
First, the Court held that, as a threshold matter, the expressive-association right applied. This right “is not reserved for advocacy groups”; it applies more generally to any groups that “engage in some form of expression, whether it be public or private.” The Court determined that the Boy Scouts was expressive by examining its mission statement—part of the mission is “helping to instill values in young people,” which the organization does through its scoutmasters and assistant scoutmasters. “It seems indisputable that an association that seeks to transmit such a system of values engages in expressive activity.”
Second, the Court held that “the forced inclusion of Dale as an assistant scoutmaster would significantly affect the Boy Scouts’ ability to advocate public or private viewpoints.” The Boy Scouts’ teachings were contrary to homosexuality—the Court deferred to the organization’s assertion that this was so, but there was also some evidence of this in the organization’s past statements. And “Dale’s presence as an assistant scoutmaster would significantly burden the Boy Scouts’ desire to not ‘promote homosexual conduct as a legitimate form of behavior.'” Here, too, the Court deferred to the “association’s view of what would impair its expression,” but it was also clear that, in light of Dale’s identity and visible gay activism, his “presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”
Let’s see how universities would do under this framework.
Do universities engage in expression? They’re at least as expressive as the Boy Scouts—probably more so. Expression is by far the most important thing that universities do.
Professors spend their classroom time talking to and with students. Professors and students read books and write papers. The professors explain to the students why their papers are bad; the students revise. The students write exams; the professors read them and write comments. The professors opine on how good the students’ work is, which might be boiled down to a convenient expression such as “B+.” The administrators produce two all-important pieces of paper: the transcript, which lists a student’s classes and grades, and the diploma, which names the university and certifies that a student has completed the requirements. Those two pieces of paper (especially the diploma) are the main reasons why students go into debt and pay universities the big bucks. This is all speech—”pure speech.”
What does the university do other than speech? Dorms, cafeterias, gyms, and parking are comparatively insignificant. If necessary, the university could just rely on third-party vendors for those.
Perhaps more problematic for the “universities as expressive” theory is that many universities have substantial nonexpressive activities that relate very tangentially to teaching and learning. Some argue that these activities are distant from universities’ educational mission—or that they wag the dog and make universities like corporations. These include scientific labs that generate marketable patents, medical centers that treat patients, sports teams that generate revenue, and enormous endowments. Perhaps some of these could be characterized as hands-on activities that are ancillary to teaching—but surely not all of them. (Likewise, the Girl Scouts run a lucrative cookie operation.) But to the extent that the university has at least some segregable units that focus primarily on teaching, learning, reading, and writing—call it the “College of Arts and Sciences” model—at least those units are expressive organizations that largely engage in pure speech.
Focusing on that core model, the Supreme Court has often written that universities play a unique First Amendment role. Long ago, Justice Felix Frankfurter wrote in Sweezy v. New Hampshire about “the dependence of a free society on free universities.” He quoted the following language from a report on South African universities:
It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail “the four essential freedoms” of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.
Note that selection of faculty and students are two of the essential freedoms of the university.
Later, in Keyishian v. Board of Regents, the Court wrote that academic freedom is “a special concern of the First Amendment”—recognizing the distinctive place of universities in First Amendment doctrine because of teaching, research, and related expressive activities. And some other cases—Garcetti v. Ceballos and Rust v. Sullivan—have at least hinted that free-speech norms might apply more stringently in universities.
These weren’t affirmative action cases, but Justice Lewis Powell, citing Sweezy and Keyishian, tied it all together in University of California Regents v. Bakke: “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.” Justice Powell wrote that the university’s diversity goal was “of paramount importance in the fulfillment of its mission” and pointed out that, while diversity is most important “at the undergraduate level,” it is also important in medical and law schools.
Twenty-five years later, Grutter explicitly adopted Justice Powell’s opinion, quoting his First Amendment–related discussion and noting universities’ “special niche in our constitutional tradition,” grounded in “the expansive freedoms of speech and thought associated with the university environment.”
The Supreme Court’s last word was in Students for Fair Admissions. The Court didn’t exactly endorse Justice Powell’s views: it quoted Justice Powell’s language about a university’s academic freedom but noted that Justice Powell wasn’t speaking for anyone else on the Court. But the Court didn’t specifically disapprove of Justice Powell’s First Amendment/academic freedom angle either (it just made strict scrutiny harder to satisfy). So, while Grutter (and thus Justice Powell’s Bakke opinion) can no longer be taken at face value, the idea that (at least private) universities are entitled to some amount of special First Amendment–inspired respect hasn’t been rejected.
Of course, the Justice Powell view isn’t a stand-alone First Amendment theory grounded in expressive-association rights—it’s just an argument for greater Equal Protection deference. But it shows that treating universities as expressive associations is plausible and perhaps even obvious.
But back to the Boy Scouts analogy. Like the Boy Scouts, universities also have mission statements—many of which explicitly incorporate diversity, antiracism, racial justice, reparations, and the like. (I’ll say “diversity” for simplicity, but this can include a wide range of views regarding the importance of having people of different races, or a particular racial balance, within the university community. Indeed, if this expressive-association theory is viable, universities won’t need to be constrained by Grutter‘s specific “educational benefits of diversity” rationale.)
In most cases, universities’ commitment to diversity is probably clearer than was the Boy Scouts’ opposition to homosexuality. Just in case, universities should be explicit about their views; if they haven’t been up-front about their views on diversity and racial justice (perhaps to keep their affirmative-action programs looking legal under Grutter), they should become more up-front now. But regardless, as in Boy Scouts, we should defer to a university’s representations of its own values; any past statements are “instructive”; and for most universities, one should be able to find abundant evidence that their diversity commitment is sincere (even if some may find this commitment to be somewhat skin-deep). As with the Boy Scouts, universities might be trying to convey a particular message—here, racial diversity—but if their faculty or student body were insufficiently diverse, that would “send[] a distinctively different message.”
One might object to the attempt to fit universities into a Boy Scouts mold. But many of these objections are already dealt with in Boy Scouts itself.
Not everyone at a university has to believe in diversity; many private universities voluntarily adopt free-speech norms that preclude forcing faculty or students to believe anything particular; some faculty or students might oppose diversity goals or affirmative action. But the Boy Scouts didn’t insist on ideological homogeneity: “the First Amendment simply does not require that every member of a group agree on every issue in order for the group’s policy to be ‘expressive association.'”
A university can have many other values, and perhaps diversity isn’t most universities’ primary value. But the same is true of the Boy Scouts: “[A]ssociations do not have to associate for the ‘purpose’ of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection.” Similarly, even if a university decided to teach the importance of diversity “by example” rather than through explicit instruction, that wouldn’t matter, because “the First Amendment protects [an organization’s] method of expression.”
B. Strong and Weak Expressive Association Rights
But this is only the beginning of the analysis. Applying Boy Scouts to affirmative action requires some extra steps, because the Court has never articulated a strong expressive-association vision. The Boy Scouts view is limited and may not support an affirmative-action right at all universities. Only some will be able to take advantage of the expressive-association right and bring faculty and students within the doctrine.
In Subsections 1 through 3 below, I explore the consequences of taking a strong expressive-association vision seriously—it would likely mean the invalidity of antidiscrimination law whenever an expressive association engages in expression. Subsection 4 explains the weaker expressive-association right that’s actually present in the caselaw—one where the claimant has to show an actual burden on its ability to speak, for instance where the law outright forces a change in the organization’s message or where the law prevents the organization from choosing its desired leaders or spokespeople.
1. Compelled Association as Compelled Speech
The Boy Scouts holding depended on finding that the New Jersey antidiscrimination law imposed a “significant[] burden” on the Boy Scouts’ ability to express itself. Do antidiscrimination laws significantly burden the university’s ability to spread its ideas? Perhaps the compelled association is itself a significant burden. As with the Boy Scouts, perhaps we should defer to the university’s view on what would burden its ability to spread its ideas. And even if we ignore deference, perhaps we could still get the same result: if a gay assistant scoutmaster’s mere presence would “force the [Boy Scouts] to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior,” couldn’t the same be true of the university when it speaks, contrary to its professed diversity values, through a non-diverse set of people?
This strong view would be based on a couple of analogies: (1) speech compulsion is just as disfavored, under the First Amendment, as speech restriction; (2) freedom of speech is just as protected as freedom of expressive association; and, consequently, (3) compelled speech is just as a bad as forced association in an expressive organization.
First, observe the connection between freedom of speech and freedom from compelled speech. The right to speak implies the right to choose whether one will speak—i.e., the right to choose not to speak. Forcing you to speak denies you the right to choose whether to speak. In compelled speech cases, we don’t look deeply into why the speaker doesn’t want to say what they’re being compelled to say, and we don’t ask precisely how the compelled speech would harm the speaker or alter their message. It’s enough that there’s a compulsion. “Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech.” (The government might still win, but this is a matter of evaluating the compulsion under the appropriate degree of scrutiny, not of determining whether a compulsion exists to begin with.)
Compelled speech is at least as much of an imposition as bans on speech. “There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision of both what to say and what not to say.”
Further, it does not cure the compulsion that you can distance yourself from the speech. One who is forced to speak “may be forced either to appear to agree with [the compelled speech] or to respond.” Then “protection [of a speaker’s freedom] would be empty, for the government could require speakers to affirm in one breath that which they deny in the next.”
This “constitutional equivalence of compelled speech and compelled silence” goes back to cases such as Miami Herald Publishing Co. v. Tornillo, which held that newspapers can’t be required to give equal space to the candidates they criticize, and Wooley v. Maynard, which held that freedom-loving New Hampshire can’t force drivers to display “Live Free or Die” on their license plates. “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.'” Similarly, as in Hurley, “[s]ince all speech inherently involves choices of what to say and what to leave unsaid, . . . one who chooses to speak may also decide what not to say.” “[W]hatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government’s power to control.”
In fact, speech compulsion may be even more problematic than speech prohibition—”a law commanding ‘involuntary affirmation’ of objected-to beliefs would require ‘even more immediate and urgent grounds’ than a law demanding silence”—because of the dignitary harm of being forced to affirm something contrary to conscience.
Second, let’s connect freedom of speech with expressive-association rights. Why do we care about expressive association? Because in addition to our right to individual free speech, we also have a right to join others i
Article from Reason.com
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