Expressive Discrimination: Universities’ First Amendment Right to Affirmative Action — Part 3
Last week, I started blogging (and yesterday, I continued 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!
Yesterday’s post gave the main thesis, laying out under what conditions a Boy Scouts expressive association right might be viable under current caselaw. Today’s post lays out some complications of the theory, answering four questions: (1) Does the race context make anything different? (No.) (2) Does the market context make anything different? (No.) (3) Does the Title VI conditional-spending context make anything different? (Yes, some.) and (4) Can public universities use this theory? (No.)
If you want to see the PDF with all the juicy footnotes, read the whole thing.
II. Some Complications
A. Is Race Different?
One might resist this whole argument by arguing that race discrimination is different from the sexual-orientation discrimination in Boy Scouts and 303 Creative.
But the racial angle shouldn’t make any difference. The doctrine doesn’t distinguish between race and other bases of discrimination. When one challenges governmental discrimination, Equal Protection doctrine draws strong distinctions—embodied in the applicable tiers of scrutiny—depending on whether the discrimination was based on race, sex, or something else. But that’s not implicated here, because there’s no state action in private universities’ affirmative action programs. Here, the issue is compelled association, which (as discussed above) is like compelled speech.
Doctrinally, a person’s liberty interest in saying something racist is the same as their interest in saying something anti-gay: the question is merely whether they’re being made to say something they don’t want to say. There’s no doctrinal reason why 303 Creative would (or should) have come out differently if Lorie Smith had refused to make websites for interracial marriages.
And for associational freedom, an antidiscrimination law can burden a group’s expression just as much when the group is being racially discriminatory as when it’s being discriminatory against LGBT people. There’s no doctrinal reason why Boy Scouts would (or should) have come out differently if it were a “Hitler Youth” organization that wanted to have white scoutmasters to teach white supremacy. (Or, in a more mainstream context, compare the racial theater and TV casting decisions discussed above with the gender-related decisions of someone making straight rom-coms or cisgender female beauty pageants.)
The cases cite each other without regard to the type of discrimination involved. Claybrooks v. ABC, recognizing a right to be racially discriminatory in TV show casting, relied heavily on Hurley—a case about an LGBT Irish-American group’s participation in a parade—without considering whether race issues are different from LGBT issues. Similarly, Donaldson v. Farrakhan, finding a right to address a men-only audience, relied on Boy Scouts without discussing whether anti-LGBT discrimination is similar to sex discrimination (or even a type of sex discrimination, as later suggested by Bostock v. Clayton County).
Perhaps the difference isn’t in the level of the burden on the speaker or association, but on whether the government would prevail under the relevant level of scrutiny. Can the government prevail more easily in a race case?
Recall that the appropriate level of scrutiny is somewhat unclear. If strict scrutiny is required, that raises two possibilities: (1) Would the government’s interest in ending race discrimination be compelling, while the interest in ending sex or sexual-orientation discrimination isn’t? (2) Does the race, sex, or sexual-orientation context affect whether narrow tailoring is present?
As to the first option, the Court has held that eradicating racial discrimination is compelling in cases such as Bob Jones University v. United States. But other interests have been held to be compelling too: Roberts talked about “Minnesota’s compelling interest in eradicating discrimination against its female citizens.” And the Roberts Court referred to discrimination more generally: A state’s “commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services . . . plainly serves compelling state interests of the highest order.” In fact, “acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent.”
For sexual-orientation discrimination, one could either rely on the broad Roberts formulation or think of sexual-orientation discrimination as a species of sex discrimination. The Tenth Circuit, in 303 Creative, stated (citing Roberts) that “Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.”
The case law thus resists any distinction between eradicating different forms of discrimination in terms of the strength of the governmental interest. Any antidiscriminatory governmental purpose is likely to be held compelling.
And as to narrow tailoring, it seems that the degree of tailoring of any antidiscrimination law depends on how broadly or narrowly it sweeps, not on the basis of the discrimination that it prohibits. One could conclude that, given that eradicating the dignitary harms of discrimination is a compelling interest, the most narrowly tailored means of achieving that goal is a complete prohibition. Or one could conclude (as did the Tenth Circuit) that the governmental goal is ensuring access to services. If that’s the case, it depends on how unique someone’s services are; as long as one can get the same product elsewhere, one can afford to make exceptions, but as to unique products, a complete prohibition is the most narrowly tailored way of achieving the goal. These theories may be plausible, but they don’t distinguish race from sexual orientation.
Or perhaps—sticking with the “equal access” goal—the degree of tailoring has something to do with the scope of the statute’s exceptions. A complete prohibition might be minimally tailored, a prohibition with some targeted exceptions more tailored, and so on. Here, one might ask to what extent the availability of exceptions prevents the government from achieving its goal. The background societal level of discrimination against a particular group might thus be relevant in assessing whether an antidiscrimination law is really the government’s least restrictive alternative; so would the degree of competitiveness or “monopoly power” in a particular industry.
Perhaps—one might argue, under this view—a racial-discrimination prohibition must be super-strict, because only an absolute law can succeed in combating racial discrimination. Perhaps a prohibition against sexual-orientation discrimination can afford to not be so absolute, because anti-LGBT discrimination isn’t as widespread and thus LGBT people are more likely to find someone willing to deal with them. (Even if one custom website designer won’t deal with them, another custom website designer will; the uniqueness of that particular website designer’s product wouldn’t be relevant.)
But one problem with that theory is that the cases don’t ask that question. Another problem is that even if the relative degrees of animosity toward different groups were relevant, it’s not clear which way that cuts in today’s society. What’s more widespread today, anti-LGBT animus or racial animus? Surely interracial couples can more easily find a wedding-website designer than can same-sex couples. And if that’s the case, a principle that allows for anti-LGBT expressive exceptions should apply at least as strongly in the racial case.
B. The Market Context and the Level of Scrutiny
1. Maybe This Doesn’t Apply in the Market Context?
Last year, one could have objected that Boy Scouts has never been extended to the commercial context. The Boy Scouts is a nonprofit, volunteer organization. Hurley is about a parade—likewise a nonprofit, volunteer organization. Avoiding compelled speech is all well and good, and so is expressive association, but should antidiscrimination law give way even when commercial relations are involved?
Perhaps one could have argued that universities are still covered by Boy Scouts because they’re generally nonprofits. But perhaps not: there’s nothing magical about nonprofits (the Jaycees was also a nonprofit), there’s no sharp distinction between how nonprofit and for-profit firms act, and there’s no strong difference between how nonprofits and for-profits are treated in fields such as antitrust. Thus, despite universities’ expressive nature, one might think the commercial, rather than volunteer, aspect is primary. Student admissions and faculty hiring are about commercial relations—for faculty, this is about one’s very livelihood, and for students, it’s about a multi-year contract, perhaps hundreds of thousands of dollars of debt, and preparation for a career.
In arguing that commercial relations are different, one could have looked to various sources, though they wouldn’t all have had the same implications for universities.
First, one could have looked at Runyon v. McCrary, which denied a private school’s right to discriminate against black students. Some might find this the closest case on point to university affirmative action, since it involved a school (though, admittedly, a for-profit school) trying to choose its students based on racial criteria. But, as noted above, Runyon didn’t squarely present the issue.
Second, one could have looked at Justice Powell’s concurrence in Runyon. Justice Powell thought that (as a statutory matter) § 1981 applied because the school there was “operated strictly on a commercial basis” and was “part of a commercial relationship offered generally or widely.” He distinguished that school from “[a] small kindergarten or music class, operated on the basis of personal invitations extended to a limited number of preidentified students.” Universities would certainly fall on the commercial side of Justice Powell’s line, though Justice Powell wasn’t making any constitutional point.
Third, one could have looked at Justice O’Connor’s concurrence in Roberts. Justice O’Connor argued that expressive-association rights should belong to expressive associations, not commercial ones. Expressive associations, she wrote, should get to define their membership. “[T]he formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice”—and “state regulation of its membership will necessarily affect, change, dilute, or silence one collective voice that would otherwise be heard.” But freedom of commercial association, she wrote, is only minimally protected.
Justice O’Connor’s view would probably cut in favor of the university’s First Amendment claims: universities are predominantly engaged in expression, and—especially if they have a strong race-related mission statement and choose their members to inculcate their values—state regulation of their membership could dilute their message. Though, it’s hard to say for sure, because a lot of money is changing hands and the relations are contractual. Green v. Miss USA illustrates the range of possible disagreement here: is a for-profit beauty pageant an expressive a
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