The boy scouts' three (four?) association claims
Marty.Lederman at USDOJ.GOV
Thu Jun 8 16:56:58 PDT 2000
Four points/questions in response to Michael's post:
1. As I mentioned before, BSA's argument is *not* limited to entities that are (i) noncommercial or (ii) or "expressive" or (iii) associations. The sweeping exemption it seeks -- and that it claims the Court established in Hurley -- is for all "private organizations." (Pet. Br. 29).
2. Is the Univ. of Pennsylvania either a "for-profit business or public institution"? See EEOC v. Univ. of Pa.
3. How would (or could) the Court limit its holding to associations that are "noncommercial" or "expressive"? Commercial entities engage in plenty of "noncommerical" speech, of course, and the Court has recognized that such speech is entitled to the same protection as that of a noncommercial entity. E.g., Bellotti, 435 U.S. 765, 784-785 (1978). I think the real reason for O'Connor's attempt to draw a "commercial"/"noncommercial" line is not that the latter has greater free speech rights, but instead has to do with the stronger state interest in prohibiting discrimination in organizations that we think of as "commercial." However, if I'm right about that, can it really be the case that -- as a matter of constitutional law -- the Court could conclude that New Jersey has less interest in preventing discrimination in the Scouts as it does in a N.J. corporation?
And what would it mean to create a category of "expressive" associations? Those that speak a lot? Those that are organized for the purpose of speaking? All such organizations -- not just those primarily devoted to racial issues -- should be able to discriminate on the basis of race?
4. Even if there were a category of "expressive, noncommercial private associations" that would receive an absolute exemption from all civil rights (and other antidiscrimination) laws for all leaders, speakers and role models -- including civil rights laws that have no apparent impact on the organization's speech -- and if BSA is included in such a category, why aren't all private schools likewise included? After all, they, too inculcate values and provide instruction. The private school in Runyon, for instance, "inculcate[d] * * * values and standards." 427 U.S. at 177. The Court held that requiring the school to admit black students did not violate associational rights (including those of the parents) because, inter alia, "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," including the school's promotion of "the belief that racial segregation is desirable," id. at 176.
Marty Lederman (in my private capacity)
From: Michael McConnell [mailto:Mcconnellm at LAW.UTAH.EDU]
Sent: Thursday, June 08, 2000 10:10 AM
To: CONLAWPROF at listserv.ucla.edu@inetgw
Subject: Re: The boy scouts' three (four?) association claims
I would note that every one of Marty Lederman's examples of Supreme
Court approval of the application of antidiscrimination laws to
leadership choices involves either a for-profit business or a public
institution. The Scouts' suggestion that noncommercial expressive
associations should enjoy the same freedom to select their leaders
than religious associations already enjoy seems a modest step, which
would advance civil libertarian values without seriously infringing
on anyone's civil rights. If, for example, the NRA decides to select
a woman to lead the organization, thinking this would be good for
public relations, I think it is entitled to do so.
Michael McConnell (U of Utah)
332 South 1400 East
Salt Lake City, UT 84112
mcconnellm at law.utah.edu
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