Whoops, forgot one more hypo

[Bryan Wildenthal]

Well, I would concede that the "pervasive institutional identity" notion is
a vague and troubling concept that probably has applications that will make
me uncomfortable and that might violate the First Amendment.  I just
proffered it as part of this off-the-cuff email discussion, and it may well
not stand the test of careful scrutiny.

I do respectfully disagree with Eugene's understanding of what the "Aztec"
and similar Indian-related symbols mean.  In my view, they are inherently
and objectively racist, and reasonably perceived as such by many Indians
(and non-Indians).  And while it is true that a university "pervasively
identified" with such a symbol is not *literally* denying education,
employment, etc. to the victimized race (or sex), that seems a rather
precious distinction.  The whole point of sexual and racial
harassment/hostile environment law is that certain types of speech, images,
and symbolism can legally constitute denial of equal treatment even if one
is not literally fired, demoted, denied admission, etc.  Discrimination is
very often carried out through quintessential "speech acts," such as "Whites
Only" signs or publishing race- or- sex-restricted classified employment
ads.

Bryan Wildenthal, Thomas Jefferson School of Law

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Thursday, June 07, 2001 5:03 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Whoops, forgot one more hypo



        I'm not sure whether there might be some confsion here.  I agree
with Bryan that the government may refuse to fund schools that actually
discriminatorily exclude people from jobs, classes, and the like.  But
that's not in fact at issue in the "hypothetical school described below" --
"The University of Blankety-Blank's Women's Studies Institute, which has
acquired a nationwide reputation as a graduate and undergraduate department
whose faculty nearly unanimously take the view that women are morally
superior to men."  In the hypothetical, men are certainly free to seek
employment at the Institute, and to apply to be students there; we can even
suppose that the school does not consider an applicant's sex in hiring or
admission, though they might consider the applicant's ideology.

        Bryan, am I understanding you correctly that the government may, and
perhaps even must, refuse to let student loan funds be used at the UBB
Women's Studies Institute?

        Incidentally, as to "comprehensive identification" and mascots, I'd
be happy to stipulate that my examples involve the same amount of
comprehensive identification as mascots do.  But in fact if the claim is
comprehensive identification of the university with a particular
anti-American-Indian ideology, I'm rather skeptical on that score.  Even if
the Aztec schtick at SDSU football games itself expresses an
anti-American-Indian ideology, simply calling an SDSU student an Aztec will
probably arouse as few ideological connotations for most listeners as, well,
calling a UCLA student a Bruin, calling a USC student a Trojan, or calling a
Notre Dame student one of the Fighting Irish, or for that matter calling a
Santa Fe resident a "Santa Fe-an" (even though the words Santa Fe are
literally an extremely ideologically laden religious term).  That's why I
think that the "pervasive institutional identity as an
[male/white/non-American-Indian]-supremacist" test, as applied by Bryan,
provides a fairly low threshold:  It's enough that there be one visible
routine that a court would consider to be something-supremacist, coupled
with some broad connection in the public mind between the institution and
the routine.  It doesn't actually require that a particular sentiment in
fact pervade the educational program of the institution.

        In any event, if anything this just shows that the "pervasive
institutional identity" test is a pretty vague one, with the judgment of
pervasiveness probably depending in large part on just how incensed the
judge gets at the institution's speech.  I'll be happy to use it for
purposes of our discussion, but people should recognize, I think, that under
this standard any of the four hypos I've given might be found by at least
some judges -- and perhaps by most judges -- to involve a "pervasive
institutional identity" that's pro-Socialist, pro-gender-differences,
pro-human-genetic-engineering, or anti-male.

        Eugene



-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20010607/fd1a360d/attachment.htm