Dean Treanor and Georgetown’s First Amendment rights
I’m almost two weeks late to this party, but I wanted to congratulate Dean William Treanor of Georgetown Law for his strong response to the letter sent by Interim U.S. Attorney Ed Martin insisting that Georgetown Law “eliminate[] all DEI from [the] school and its curriculum”, and threatening not to hire any Georgetown graduate if it fails to do so.
Dean Treanor writes:
The First Amendment . . . guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it. The Supreme Court has continually affirmed that among the freedoms central to a university’s First Amendment rights are its abilities to determine, on academic grounds, who may teach, what to teach, and how to teach it.
This is a bedrock principle of constitutional law—recognized not only by the courts, but by the administration in which you serve. The Department of Education confirmed last week that it cannot restrict First Amendment rights and that it is statutorily prohibited from ‘exercising control over the content of school curricula.’ . . .
Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind th[e Administration’s] threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.
I like Georgetown Law (I taught there as a Visiting Assistant Professor from 2006 to 2008, before Treanor’s tenure as dean), and though I haven’t been a big fan of Georgetown Law’s recent approach to free speech, I hope other schools resist the Administration’s demands similarly forcefully. (Ed and I were co-clerks at the Institute for Justice in Summer 2001, but I’m on Dean Treanor’s side here.)
Mainly, though (because this involves “DEI” and “First Amendment” in close proximity to each other), this is a good excuse for me to plug my own (slightly related) article, just published in Florida Law Review—Expressive Discrimination: Universities’ First Amendment Right to Affirmative Action. I’ve blogged about this before (Parts 1, 2, 3, and 4), but I’ll reprint the Introduction below.
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—just because she was willing to create one for a straight marriage—that would be compelled speech, which would violate her First Amendment rights.
These two lines of doctrine don’t usually talk to each other, but they should—especially now.
Suppose you’re a private-university president who wants to have affirmative action for faculty hiring or
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