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Volokh, Eugene VOLOKH at mail.law.ucla.edu
Tue Jun 6 14:52:38 PDT 2000


        Let's say that a state decides to enact a law that requires all
organizations to be race-, sex-, and sexual orientation-blind in selecting
their leadership.  I realize that most on this list would not support such a
law, even if they do support a law barring certain kinds of discrimination
in group leadership.  But surely such a law could easily be imagined --
imagine that Stevens et al. won in Bakke, and that this interpretation of
Title VI were extended to the state public accommodation discrimination law
(which was itself applied to expressive organizations).

        Under this law, both the ACLU practice and the Boy Scouts practice
would be illegal, since both practices involve different treatment based in
part on race, sex, and sexual orientation.  The question then would be
whether these groups have a freedom of expressive association right that
would trump the antidiscrimination law.  One possible answer is "yes,"
because organizations have a freedom of expressive association right to
choose their officers based on whatever criteria they please, with no
interference by the government.  Another possible answer is "no," because
organizations do not have such a right.  Another possible answer is that the
ACLU wins but the Boy Scouts lose because organizations only have a freedom
of expressive association right to select their top-most policymaking
leadership, and scoutmasters don't qualify (obviously, this would be hotly
contested).

        But I just don't see how a court could say that an organization has
a constitutionally secured expressive association right to use race, sex, or
sexual orientation as a factor in the decision, and can have race- and
sex-based quotas, but do not have a constitutionally secured expressive
association right to use race, sex, or sexual orientation as a
disqualification.  I find it hard to imagine any theory of a right of
expressive association that would support this.  It seems to me that either
an organization has a constitutional right to consider whatever criteria it
wishes for selecting a particular official or it doesn't.  It's not clear to
me how it would have a constitutional right to consider certain criteria to
be important but others to be less important.  Maybe it makes sense for
statutory law to treat "X as plus factor" differently from "X as a
disqualifier" -- but I see no reason to think that the constitutional
expressive association right embodies any such distinction.



Frank Cross writes:

> I'm not sure that I see the freedom of association parallel between
> the Boy Scouts and the ACLU.  The Scouts are trying to exclude a
> group entirely, which raises the association issue.  A group with
> quotas for offices seems to raise the association issue only obliquely.
> Say the ACLU has quotas for women officers, but lets any man
> join and a good number of them be officers.  How is there a
> freedom of association argument?  They've chosen to associate
> freely with men.
>
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