Stevens dissent in Dale

Leslie Goldstein lesl at UDEL.EDU
Wed Jul 5 13:38:34 PDT 2000

I reply to Marty lederman's comment:
This was not a hard case on the pure Roberts question.  Contrast Runyon.
There, the segregated schools in question actually "promote[d] the belief,"
to their students, "that racial segregation is desirable, and that . . .
children have an equal right to attend such institutions."  The Court held
that forced admission of black students in such classes raised no serious
expressive association claim, in large part because "there is no showing that
discontinuance of [the] discriminatory admission practices would inhibit in
any way the teaching in these schools of any ideas or dogma."  427 U.S. at
176.  Now, I happen to think that the presence of black children in the
classroom sure would, in a very palpable sense, "inhibit," or at least
powerfully undermine, the segregationist "ideas" and "dogma" that the
teachers in those classrooms were attempting to convey.  But one thing is
clear:  If the burden on expression in Runyon was insufficient to support an
associational defense to an antidiscrimination law, surely the much less
significant, less direct and less certain burden on BSA is insufficient.

Marty Lederman (in my private capacity)

> ---------------------------------

Would not a more similar parallel to Runyan be if the govt were insisting that
the private school hire a teacher who insisted on the right to public endorsement
of anti-segregation views?  Or if the BSA were refusing to allow boys to join as
scouts if the boys publicly admitted that they saw nothing wrong with gay sexual
practices?  In other words, isn't the troop leader more analogous to organization
spokesperson in the way that a teacher is than the leader is to black
schoolchildren in a private school?

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