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 in speaking. The Supreme Court has protected expressive-associational rights for decades, such as in the context of people's right to organize political parties.
And this right covers more than just parties. In Roberts v. United States Jaycees, the Court generally recognized "a right to associate for the purpose of engaging in those activities protected by the First Amendment." The First Amendment protects "collective effort on behalf of shared goals"—the expressive-association right is a "right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."
Moreover, both the individual and associational rights have both their positive and negative versions. The right to speak implies the right against compelled speech, i.e., the right not to speak when one doesn't want to. And the right to join with others in speaking should, similarly, imply the right to choose whether to join with particular people in speaking, i.e., the right to refuse to join those whom one doesn't want to join.
One should have First Amendment protection not only when one is "prohibited . . . from actively associating" but also when one is prohibited "from refusing to associate." "[A] regulation that forces the group to accept members it does not desire . . . may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes a freedom not to associate."
2. This Doesn't Cover Nonexpressive Association
But this freedom of expressive association isn't part of any general freedom of association, which the First Amendment does not protect. If it did, all antidiscrimination law would be vulnerable, and the Court has never suggested that. Even if one does believe in a strong general freedom of association, the First Amendment would be an odd place to find it: the freedom of intimate association recognized in existing case law—which covers family relationships, sexuality, and the like—is a species of substantive due process, not a free-speech right, penumbras notwithstanding.
The First Amendment thus can't generally be used to "erect a shield against antidiscrimination laws." You don't get First Amendment protection just by claiming that your violation of a law is expressive or has ideological motives. Conduct can't "be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Otherwise, to borrow a phrase from Free Exercise doctrine, "every citizen [would] become a law unto himself." The cases have therefore looked, as a threshold matter, to whether one's conduct is "inherently expressive."
Thus, in Rumsfeld v. FAIR, the Supreme Court rebuffed the law schools' attempt to bar military recruiters from their campuses to protest the military's discrimination against LGBT people. Federal law conditioned universities' access to federal funds on universities allowing access to military recruiters; the law schools argued that they were entitled to a First Amendment exemption. But the Court said that there was no First Amendment problem, even if one ignored the funding issue and assumed that access was required outright. Pure speech is inherently expressive; flag burning is inherently expressive; a parade is inherently expressive; "a law school's decision to allow recruiters on campus" isn't. This is so even though law schools as a whole are expressive organizations: we look at the nature of the act, not the nature of the organization. The law schools' admission of recruiters isn't itself an expressive act, which fundamentally distinguishes that compulsion from the compulsions of speech at issue with the website designer in 303 Creative or, say, the crisis pregnancy centers in NIFLA v. Becerra.
How do we know that? After all, law schools "could be viewed as sending the message that they see nothing wrong with the military's policies" if they allow the recruiters. But—said the FAIR Court—the test isn't merely whether someone could interpret an action to send a particular message. As in the case of shopping centers that are forced by state law to allow other people's expressive activity, there is "little likelihood that the views of those engaging in the expressive activities would be identified with the owner." (This is so even though law schools are expressive associations and shopping centers aren't.) If you see military recruiters recruiting outside law schools, there are many possible explanations:
An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school's interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.
And this is also why there's no expressive-association right to boycott. One can always explain why one doesn't like certain people, companies, or organizations, and even explain why they should be boycotted. But the boycott itself isn't inherently expressive (even though it may always have "an expressive component"). If we focus on the fact that someone isn't buying from someone else, there are many nonexpressive reasons for that. And even if we focus on the fact that many coordinated buyers aren't buying from some sellers, there are nonexpressive reasons for that too, such as pressuring someone to change their behavior in ways that antitrust law condemns.
Similarly, cases such as Bob Jones University v. United States—about whether a university that barred interracial dating and marriage could qualify for a § 501(c)(3) tax exemption—wouldn't be altered by the Boy Scouts rationale. Banning interracial dating and marriage has a perfectly clear nonexpressive reason—racists just don't like race-mixing—and thus it isn't inherently expressive. This is even ignoring the possibility that tax exemption cases are often judged more leniently because tax exemptions can be characterized as a type of subsidy.
Couldn't one affect the likelihood that people interpret one's actions as expressive by loudly announcing one's motivation in boycotting or in excluding military recruiters? No: then one's actions would be expressive "only because [one] accompanied [one's] conduct with speech explaining it"; it would be that speech that created "[t]he expressive component of [one's] actions," and that's "strong evidence that the conduct . . . is not so inherently expressive" that it merits First Amendment protection as expressive conduct. In other words, in assessing the likelihood that one's conduct is perceived as sending a message, one should ignore any accompanying speech.
3. Compelled Association and the Degree of Scrutiny
In short, even the strong view of compelled expressive association wouldn't grant a general right to avoid antidiscrimination law when one has ideological reasons for violating it. So let's continue to explore the implications of the strong view, but limiting ourselves to when one is engaging in expressive activity.
Suppose an antidiscrimination law prohibits your expressive organization from excluding people according to some criterion (race, sex, or anything). It doesn't directly require or prohibit any speech—it just requires equal treatment of groups A and B. It amounts to a conditional command: "If you're going to join with people from group A for purposes of speech, you must also be willing to join with these other people from group B for purposes of speech."
You can comply and avoid penalties in two ways: either (1) by continuing to speak together with group A and acceding to the demand to speak together with group B or (2) by avoiding your original speech together with group A. Option (1) is a speech compulsion, because the prospect of penalties makes you speak under circumstances where you don't want to. Option (2) is a speech prohibition, because the prospect of penalties makes you not speak when you want to. Either speak when you don't want to or don't speak when you do want to—or pay the penalty. On this view, antidiscrimination mandates, as applied to expressive association, are no different than a combination of speech compulsions and speech restrictions.
Does this imply an exemption from antidiscrimination law—not just for "expressive organizations," but for any organization when it engages in expression? This reasoning wouldn't be limited to civil rights law (i.e., no Title VII for media organizations); it would also extend to other antidiscrimination regimes, for instance labor law's prohibition on discrimination or retaliation based on union status or union activity.
Maybe. But again, this wouldn't be the end of the analysis: we would still need to evaluate the government's rationale for compelling the association under the appropriate level of scrutiny. This might be harder than it sounds, because even the appropriate level of scrutiny is somewhat unclear.
Wooley v. Maynard applied strict scrutiny to the "Live Free or Die" compelled speech claim: the state's interest had to be "sufficiently compelling," and the means were invalid "when the end [could] be more narrowly achieved." Riley v. National Federation for the Blind likewise required "compelling necessity" and "means precisely tailored." In the associational context, Roberts v. United States Jaycees also applied strict scrutiny: the government was required to show a "compelling state interest[], unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." (The government won in that case because it successfully asserted an "interest in eradicating discrimination against [a state's] female citizens.")
On the other hand, West Virginia State Board of Education v. Barnette didn't apply any standard that looked like strict scrutiny—asking instead whether there was a "clear and present danger." (Our familiar tiers of scrutiny barely even existed at that time, but Barnette didn't even apply any test that was substantively similar.) Miami Herald Publishing Co. v. Tornillo didn't give any standard either. The Court left the level of scrutiny open in Hurley, since the government's interests were invalid in any event.
Boy Scouts also didn't adopt any particular level of scrutiny: it rejected the argument that intermediate scrutiny applied and then simply stated that "[t]he state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the Boy Scouts' rights to freedom of expressive association." 303 Creative didn't even mention strict scrutiny except when summarizing the Tenth Circuit's strict scrutiny analysis—and that was a case where discussing strict scrutiny would have been highly relevant, if only to rebut the Tenth Circuit's reasoning.
So the appropriate level of scrutiny in compelled speech and associational freedom cases is a bit ambiguous. Perhaps the current Court dislikes the judge-made and somewhat artificial structure of tiers of scrutiny for fundamental rights—but this phenomenon goes back further than the current Court. Perhaps the Court doesn't feel the need to always be clear on the test when it's obvious, in its view, that the government would lose. Perhaps compelled speech would even violate intermediate scrutiny, which requires "ample alternative channels of communication"—what does it even mean, in a compelled-speech or compelled-association context, to say that one has alternative channels of (non-?) communication? (If 303 Creative can indeed be taken as establishing a per se rule, that might introduce some welcome clarity into this area.)
Because strict scrutiny is a commonly used standard for speech restrictions, because some cases treat compelled speech as equivalent to compelled association, and because some cases treat speech compulsion as even worse than speech restriction, it seems fair to say that the standard is at least as strict as strict scrutiny, and perhaps in some contexts it might even approach a per se rule.
So, to sum up: If we take seriously the equivalence between free-speech and expressive-association rights, does that imply an exemption from antidiscrimination laws for any expressive organization? Or for any organization when it engages in expression? The answer is: Quite possibly, if the standard is strict scrutiny, and almost certainly, if the standard is even stricter.
4. The Need to Find Significant Interference
But Boy Scouts doesn't take such a strong view of the equivalence between free speech and expressive association. The Court's decision wasn't based on the mere fact that the Boy Scouts, an expressive organization, was being forced to accept a member (even a speaking member such as an assistant scoutmaster) that it didn't want. As the Court wrote, "an expressive association [cannot] erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message." (This is precisely what religious organizations can do—only as to their clergy—under the Title VII ministerial exemption. But the Court hasn't said the same outside of that narrow context.)
Rather, the Court stressed a few factors: (1) the Boy Scouts' mission involved opposition to homosexuality; (2) Dale was a "leader" or authority figure whose duties involved speaking for the organization, i.e., inculcating the Boy Scouts' mission (even if only by example); and (3) the forced association impaired the message, i.e., the disconnect between that mission and Dale's status as a visible gay activist was too great. These factors are connected: the forced association is more likely to impair the message if you're forced to accept people you don't want as leaders or spokespeople; and it's easier to show an impairment of the message if the message is well-defined (e.g., stated in a mission statement).
We could call this a weak-form expressive-association right: instead of merely importing the compelled-speech prohibitions to compelled association, we protect expressive association when these factors are shown. Alternatively, we could call this the derivative theory of expressive association: the expressive-association right is merely the right to come together to do things that are already independently protected by the First Amendment; thus, forced association isn't unconstitutional unless you can show some effect on your speech. Compelled speech is thus easier to get struck down than compelled association.
Factor (1), the mission prong, isn't too hard to satisfy for universities: many universities have pro-diversity statements. Factor (2), the leadership prong, is trickier, because not everyone at a university is part of the university's leadership or speaks for the institution, and not everyone's duties include inculcating values. Factor (3), showing actual burden, can be trickier still—though, as I've said for example in cases such as Boy Scouts, when factor (2) is present, factor (3) is easier to satisfy.
The case law is full of instances where the Supreme Court didn't really believe—or where it wasn't really argued—that the antidiscrimination law interfered with the association's ability to express its message.
An early case is Associated Press v. NLRB, where the Associated Press (AP) asserted a right to hire and fire whomever it wanted based on its unreviewable determination as to who was likely to be biased or partial in their reporting. That violated the National Labor Relations Act, because the supposed source of bias stemmed from union activity. But, said the Court, there was no claim that the fired employee had ever shown bias or was likely to do so, and the statute didn't prohibit firing someone who in fact showed bias or prejudice.
Some decades later, the Court decided various race and sex discrimination cases under the civil rights laws. In Runyon v. McCrary, the Court rejected a private non-religious school's claim that the First Amendment allowed it to reject black students. The school was segregated, but "there [was] no showing that discontinuance of [the] discriminatory admission practices would inhibit in any way the teaching in these schools of any ideas or dogma." As David Bernstein writes, the Runyon defendants made "what amounts to a short, throw-away argument" on "'freedom of association,'" and they "did not make an expressive association claim grounded in the First Amendment. They did not argue in their briefs that the school's ability to promote segregation would be compromised, nor did they provide evidence at trial on that issue."
Similarly, in Hishon v. King & Spalding, the Court rejected a law firm's claim that being forced to accept woman partners would violate its "constitutional rights of expression or association." Like a school, a law firm's work product is predominantly speech—but here, too, the firm didn't show specifically how its rights or expression "would be inhibited" by such a requirement.
The leading case is Roberts v. United States Jaycees, where the Court held that the Jaycees—a nonprofit membership corporation devoted to promoting "young men's civic organizations" and "inculcat[ing] . . . a spirit of genuine Americanism and civic interest"—couldn't refuse to admit women as full members. The refrain is familiar: "[T]he Jaycees has failed to demonstrate that the Act imposes any serious burdens on the male members' freedom of expressive association." The Jaycees had undermined its own case: since women could already be members (though second-class ones) and could participate in some activities, its claim hinged on the dubious additional symbolic effect of promoting women to full voting-member status.
And more recently, in Rumsfeld v. FAIR: "The [military recruiter access statute] neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy . . . ."
Could a group ever show an interference with its ability to get its message out? Yes, said N.Y. State Club Ass'n:
It is conceivable, of course, that an association might be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion.
When can you show such an interference? Most obviously, when the law actually changes the message. In the expressive association context, this can happen when the law forces you to accommodate someone else's message, as in the St. Patrick's Day Parade in Hurley. The parade organizers refused an application from the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in the Saint Patrick's Day Parade. The Massachusetts courts held that this violated a state antidiscrimination statute. But the Supreme Court unanimously held that the organizers had a First Amendment right to exclude speakers whose message they disagreed with. "[T]he state courts' application of the statute produced an order essentially requiring petitioners to alter the expressive content of their parade." And this was unconstitutional, because "a speaker has the autonomy to choose the content of his own message."
Another example of forced accommodation of someone else's message was in Pacific Gas & Electric Co. v. Public Utilities Commission of California, where a state public utilities commission forced a private utility to provide space to a different organization in the newsletter that it regularly sent to its customers along with their bill. And yet another was Miami Herald Publishing Co. v. Tornillo, where a state statute granted political candidates "equal space" in newspapers that had criticized them. These are closely analogous to mandates that one "personally speak [someone else's] message"—of course they affect one's own message.
When it comes to organizational membership, the cases have thus stressed that an organization should be able to discriminate ideologically against people who don't share the organization's goals. (Thus, universities could use an expressive-association theory to assert their right to have speech codes, though that's beyond the scope of this Article.)
A particular instance of an antidiscrimination law altering the message is where the discrimination is part of the message. If I want to cast Othello the usual way, where Othello is black and everyone else is white, preventing race-based casting is an obvious interference with my artistic vision. The same is true if Patrick Stewart does Othello with race-reversed casting, if Lin-Manuel Miranda does Hamilton with people of color playing the Founding Fathers (only George III gets to be white), if the producers of The Bachelor and The Bachelorette discriminate against non-whites (presumably because they think that will increase their revenues), or if Woody Allen casts predominantly white people in his movies simply because that's who "fits the part most believably in [his] mind's eye" and "feels dramatically correct" to him. Even though there's no "bona fide occupational qualification" exemption to Title VII for race as there is for sex, such racial casting is clearly within the expressive-association right.
Boy Scouts presented a special case, where factors (2) and (3) were present simultaneously. When antidiscrimination law alters the organization's choice of leaders or authority figures who speak for the organization, it should be easier to show a burden on the organization's expression; Roberts had suggested that the government "try[ing] to interfere with the internal organization or affairs of [a] group" might do the trick. Perhaps the law can force an organization to include an unwanted regular member, even a regular member whose job is speaking—but when it forces the organization to have a leader or authority figure it doesn't want, particularly one who speaks on behalf of the organization and inculcates its values, that really does, as Boy Scouts says, "send[] a distinctly different message." (One can also imagine cases where an organization wants to hire people who will create its message, even though they're not authority figures. An example of this would be the writing team that writes a TV show; NBC has argued that it has the right to hire a diverse writing team—and thus pass over a white man—for the show SEAL Team.)
C. Expressive Association for Students and Faculty
In short, it's not trivial for an organization to show that antidiscrimination law interferes with its ability to express its message.
Boy Scouts is about an expressive organization's right to choose the authority figures who speak on its behalf. An organization is an abstract body, which lacks a mouth to speak with or fingers to type with. For an organization to speak, it must do so through people that it chooses (using whatever decisionmaking method it has).
If a university wants to discriminate, it would be well advised to establish—provided the necessary mission statement is present—that it's dealing with people who have some authority and are expected to inculcate its values. It should have no problem doing so with its high-ranking, policymaking staff members, including at least the president or chancellor, provost, and various deans.
Showing this with respect to faculty and students is possible, but not automatic. In what follows, I suggest what a university could do to make its case look as much as possible like Boy Scouts. A university doesn't necessarily have to go all the way in the direction I suggest, but because we're not 100% sure how far the Boy Scouts doctrine extends, universities who do this will have the most straightforward case.
1. Faculty as Leader-Speakers
A university's speakers obviously include its teachers. They're the ones responsible for most of the university's speech product: lectures, discussion, feedback, scholarship, and grades. This group includes tenure-track faculty, visiting faculty, lecturers, adjuncts—and also perhaps some employees formally designated as "staff" (maybe some librarians teach classes on research methods, or maybe career services staff teach classes on professionalism, or perhaps some fellows or postdocs are formally labeled "staff" at some institutions?) and some students who work as teaching assistants and give occasional lectures or lead discussions. These teachers are all authority figures to some extent, and they all speak at the behest of their administration overlords—I can't teach at all unless my dean assigns me to a class, and I can't teach calculus if my dean tells me to teach constitutional law. And if a director can insist on casting a black man to play Othello, what's the distinction between hiring professors to teach a class and hiring actors to play a role?
But are professors really similar to actors, or to the scoutmasters and assistant scoutmasters in Boy Scouts who, "[d]uring the time spent with the youth members, . . . inculcate them with the Boy Scouts' values"? If professors have academic freedom rights and aren't required to express any particular view on diversity or anything else—and especially if they have tenure or other protections that help secure these rights—there's no guarantee that they'll teach the school's values. As a professor, I tell my students to be nice, ethical, and scholarly, and not to plagiarize, but I don't consider it my role to care about or support my university's views on any contested social or political issues. If I do take the university's position, it would be by coincidence, because I happen to agree with those views in a particular instance, not because I care about the university's values as such. (Indeed, because my university subscribes to academic freedom norms, I consider it the university's duty to support me precisely when I disagree with its views.)
Academic freedom thus seems to be a problem for a Boy Scouts theory. We don't know for sure because Boy Scouts is somewhat ambiguous. The Court noted that
the Boy Scouts does not revoke the membership of heterosexual Scout leaders that openly disagree with the Boy Scouts' policy on sexual orientation. But if this is true, it is irrelevant. . . . The fact that the organization . . . tolerates dissent within its ranks[] does not mean that its views receive no First Amendment protection.
Is the Boy Scouts' policy of partial tolerance similar to academic freedom in a university? Similarly, the Boy Scouts "discourage[d] [its] leaders from disseminating views on sexual issues." This might be enough to bring university faculty within the Boy Scouts regime, just on the basis of their (like assistant scoutmasters) being limited authority figures within the institution. Or maybe professors' academic freedom is radically different from the expectation that scoutmasters inculcate values. We don't really know. But the closer faculty are to the role of explicitly inculcating the institution's values, the neater the Boy Scouts analogy.
If academic freedom is a potential problem, then a solution would be to somehow require, encourage, or pressure faculty to inculcate students with the administration's teaching on diversity.
Note, first, that universities have a right to do so explicitly, or even to outright choose their members based on ideology, even if some antidiscrimination law says otherwise. Most jurisdictions don't ban discrimination based on politics or ideology, and if they did, (as I've noted above) an expressive organization could ignore such a law.
Private universities can also adopt mission statements that explicitly elevate social justice above free-speech or academic-freedom values; and even universities that nominally commit to free-speech norms can in practice privilege other values in case of conflict. Some universities adopt free-speech and academic-freedom statements, but nonetheless require or strongly encourage (perhaps pressure?) professors into teaching particular themes. A university might adopt a "[d]iversity statement[] for faculty job applications" where faculty job applicants are expected to answer questions such as "What does diversity mean to you, and why is this important?"; "Do you understand the university's diversity goals?"; and "How has your thinking about diversity actively influenced your teaching, research, and/or scholarship?" Such statements might also be solicited as part of professors' annual reports.
Perhaps a university that solicits such statements doesn't intend to require a commitment to furthering a particular ideology through teaching and research; perhaps, innocuously, it just wants applicants to explain how they would be sensitive to the needs of different sorts of students. Still, the existence of such statements might discourage people with the "wrong" views from applying or might signal to those who get hired that promoting the university's diversity, equity, and inclusion mission is expected and will further their careers within the institution.
Faculty don't need to be directly required to toe the party line; academic freedom needn't be completely compromised. But as I noted above, the analogy between a university and the Boy Scouts is neater when academic freedom norms are weak, i.e., if there's at least an expectation, and at most a requirement, that the faculty will use their position to inculcate the university's values to some degree.
2. Students as Speakers or as Audience
But a lot of the affirmative-action debate is about students. What about the admission of ordinary students, who aren't usually thought of as leaders or authority figures, and most of whom won't do anything more than take classes?
Here, I discuss two possible theories to support a university's First Amendment right to choose its students. First, a university could assert an expressive-association right not only to choose its speakers but also to choose its audience. This is a straightforward case to make—though it's mostly supported by lower-court cases, and perhaps it looks too much like a strong-form compelled-association claim.
Second, one could think of students themselves as part of the speaking community, based on ideas of student governance and inclusion of students in academic freedom. Like for faculty, this theory is strongest at universities where students are selected based on their commitment to diversity ideas or are encouraged or pressured to affirm those ideas. This is more closely related to weak-form expressive-association doctrine and looks more like the Boy Scouts case, but many universities probably won't want to take advantage of this theory.
a. The Right to Choose One's Audience
"Right to choose one's listeners" cases come up occasionally, though more rarely than "right to choose one's speakers" cases such as Boy Scouts; a listeners case has yet to reach the Supreme Court. In one case before the New York Commission on Human Rights (which never went to court), In re Minoo Southgate v. United African Movement, involving race-based exclusion from a pan-Africanist meeting, the Commission upheld the application of New York City's antidiscrimination law—using reasoning from Roberts v. U.S. Jaycees.
But two court cases, both involving the Nation of Islam, have upheld the discriminators' position.
In one (pre–Boy Scouts) case, City of Cleveland v. Nation of Islam, the Nation of Islam was trying to get access to a municipal convention center "for a 'men only' address by the Nation's leader, Minister Louis Farrakhan." This violated an Ohio statute and a Cleveland ordinance, but a federal district court ruled in favor of the Nation of Islam:
In the present case the City of Cleveland is attempting to use a human rights statute to justify interference with the content of a private speaker's message. . . . If the City is allowed to make the public accommodation law requiring Minister Farrakhan to speak to a mixed audience, the content and character of the speech will necessarily be changed. The City would then be regulating private speech which would be a violation of the First Amendment.
In another (post–Boy Scouts) case, Donaldson v. Farrakhan, a mosque affiliated with the Nation of Islam leased a theater owned by the city of Boston to hold a "[m]en's meeting on black on black crime, violence, and drugs in communities of color." The Massachusetts Supreme Judicial Court ruled that Massachusetts's antidiscrimination law couldn't be applied against the Nation of Islam here—in part relying on freedom of religion principles, but in part explicitly discussing freedom of association and citing Boy Scouts:
[W]e must decide whether the forced inclusion of women in the mosque's religious men's meeting by application of the public accommodation statute would significantly burden the mosque's expressive association.
"[I]ntrusion into the internal structure or affairs of an association" is one way in which government action may unconstitutionally burden this freedom. [Boy Scouts, citing Roberts.] Such intrusion might take the form of a regulation forcing a group to accept members it does not desire. Forced inclusion of unwanted members may impair the ability of a group to express only the views it intends to express. If the forced inclusion of an unwanted person affects in a significant way the group's ability to advocate public or private viewpoints, it is in violation of the First Amendment.
In short, the Court wrote, "[f]orcing the mosque and its leaders to include women in the meeting would change the message"—and this would violate the group's expressive-association right.
The Nation of Islam and Donaldson cases have somewhat conclusory reasoning. If we think of the audience at the Nation of Islam talk as just passive listeners, why, as the Nation of Islam court wrote, would "the content and character of the speech . . . necessarily be changed" depending on the audience?
Similarly, why should we think of the listeners as "members" whose inclusion would be, in the words of the Donaldson Court, an "intrusion into [the group's] internal structure or affairs"? The expressive-association right is the right of people to join with others for the purpose of speaking. It's easy to see why forcing someone's inclusion violates a general freedom of association—but that's not what the First Amendment protects. It's harder to see why imposing unwilling listeners infringes a speaker's right to associate with other speakers for the purpose of speaking.
There's a certain attractiveness to the bottom line of these two Nation of Islam cases. As I discussed above, the expressive-association right is similar to the free-speech right, and compelled association is like compelled speech; the right to speak implies a right to refuse to speak for any reason, even because one doesn't approve of who else is in the room. A "choose your own listeners" case should thus function just like a "choose your own speakers" case. It shouldn't require showing that the content of the message would be changed, and it shouldn't require characterizing listeners as members of the group. It should simply require asserting the right of the organization to choose the circumstances under which it wants to speak. Such a theory would straightforwardly support a university's right to choose its students using race-conscious affirmative action, even if the students are merely conceptualized as passive listeners.
But though this view is coherent, it looks like a strong-form expressive-association right—which, as I've said above, is more than what the Supreme Court cases hold. Roberts and related cases reject the view that there's an expressive-association right to merely choose one's members, even one's speaking members. And if there's no general right to choose one's members—if Boy Scouts still insists on showing real interference with one's expression—it seems doubtful that there's a right to choose one's listeners, who, after all, aren't even engaged in the speech acts. Admittedly, some of the case law includes listeners as within the protection of the First Amendment, but a listeners' rights theory isn't the most obvious place to find an organization's right to exclude listeners.
The fact that some cases come out this way means that this is a contested area, and perhaps the Court will ultimately move toward stronger expressive-association protection, but for now, this might be an overreading of Boy Scouts.
b. Students as Speakers Themselves
But one doesn't have to rely on asserting a right to choose one's listeners. As I've said above, the university's speakers include at least its high-ranking officials and teachers, including faculty, some staff, and some students who work as instructors or TAs. But we don't have to be that narrow.
Many universities adopt a broad view of who's part of the scholarly community, and this view informs their free-speech and academic-freedom policies. Emory University describes itself as "a community of scholars" and grants rights under its Open Expression Policy to the entire "Emory University Community," which is broadly defined to include students, staff, faculty, and others. Smith College writes, in its Statement of Academic Freedom and Freedom of Expression, that "[a]cademic freedom pertains to students as well as faculty."
The American Association of University Professors, a leading defender of academic freedom, stresses that principles of academic freedom properly apply to students, not just professors: "Student freedom is a traditional accompaniment to faculty freedom as an element of academic freedom in the larger sense." The Foundation for Individual Rights and Expression similarly writes that "academic freedom should be enjoyed by colleges, faculty members, and students." We've already seen the view that academic freedom is a First Amendment concern, and some Supreme Court cases indicate that the concept applies to university students as well as to professors.
This makes sense: graduate students are expected to do what professors do—even undergraduates are expected to argue original scholarly theses—and the work of developing and expressing ideas isn't limited to peer-reviewed publications; it begins and continues in student interactions, lunch-table discussions, and student protests.
A university doesn't have to take this view. It could describe undergraduates as mere passive listeners—expressive-association rights allow the university to say who its speakers are, and courts must defer to the university's self-characterization. But courts must also defer to the many private universities that do include students in their statements of who's a part of their scholarly community.
Moreover, because most universities implement some form of student governance—partly binding themselves to respect decisions taken by the student body as a whole through elections—they're recognizing that all students are decisionmakers in the institutions, just as faculty are thanks to faculty governance. It helps the Boy Scouts analogy if the student government has adopted diversity-based resolutions. It also helps if students oversee certain aspects of university operations, such as student disciplinary proceedings.
Is it strange to talk about students as being authority figures rather than customers or passive listeners? Not at all; in fact, when universities as we know them first arose in the Middle Ages, they were mostly either associations of professors that recruited students (such as the University of Paris) or associations of students that hired professors (such as the University of Bologna). Today, imagining universities as being (potentially) radically egalitarian for Boy Scouts purposes is no more outlandish than applying the Title VII ministerial exception broadly for religions that lack a hierarchical structure.
But wait, didn't I say earlier that academic freedom is a problem for the Boy Scouts analogy, because members who are totally free can't easily be likened to authority figures who are mouthpieces for university values? Quite right, and that point is just as important for students as for faculty. The point here isn't that universities need to protect their students' academic freedom—just that universities often recognize students as speakers on par with faculty.
Just as with faculty, the more that universities require or pressure their students to adopt particular diversity-based values—or perhaps merely self-consciously select students based on whether they abide by those values—the more students can be characterized as speakers and decisionmakers of the organization who are involved in inculcating the university's message. Some universities indeed impose this sort of pressure. For instance, Columbia Teachers College has required students in its education programs to demonstrate their "commitment to social justice." (Indeed, the National Council for the Accreditation of Teacher Education previously recommended "that education students demonstrate a belief in 'social justice' in order to graduate.") For ordinary undergraduate students, Haverford College maintains an honor code that seems to enforce some degree of ideological conformity:
[A]cts of discrimination, microaggression, and harassment, including, but not limited to, acts of racism, sexism, homophobia, transphobia, classism, ableism, tokenism, cultural insensitivity, discrimination based on citizenship status, discrimination based on religion, and discrimination based on national origin, accent, dialect, or usage of the English language are devoid of respect and therefore, by definition, violate this Code.
Defending against violations of the Code by bringing up certain political or social views is itself a violation of the Code:
Upon encountering actions, values, or words that we find to be lacking trust, concern, and/or respect and that are thus degrading to ourselves and to others, we may initiate dialogue with the goal of repairing the damage that these actions, values, or words may have caused while also encouraging the restoration of our community values.
In these dialogues, confronted students weaponizing the Code's expectation of respect in order to silence and/or invalidate the experiences of harmed parties—including invalidating experiences of harm by claiming discrimination against a privileged identity (e.g., claims of reverse-racism) or refusing to reflect on their actions—is a violation of the Code.
The Code also requires students to "act as active bystanders when [they] witness a breach of the Social Code" and to "report [them]selves" if they believe they have violated community standards. (The idea that students are also enforcers of speech-restrictive policies isn't uncommon: through "bias intervention and response team polic[ies]," hundreds of universities encourage students to report on their colleagues for discriminatory expression.)
Admittedly, Haverford has also adopted a free-speech policy, so a lot might depend on what would happen if these two commitments were thought to collide. Indeed, some commentators state that free speech is not a high value at Haverford in practice. Haverford thus seems like an excellent example of a university that has made pro-diversity statements (including the student-driven ones quoted above), that includes students in its scholarly community, that practices "student self-governance," and that expects students to actively endorse and enforce its values.
The analogy with the Boy Scouts is probably strongest for schools that are like Haverford—or that decide to change their policies to make themselves more like Haverford. Haverford is well-positioned to test out this expressive-association theory. Researching this Article has made me extremely unwilling to send my kids there, but I would be glad to write its brief.
[Note: this serial-blogging will continue in later posts.]
The post Expressive Discrimination: Universities' First Amendment Right to Affirmative Action — Part 2 appeared first on Reason.com.
