Whoops, forgot one more hypo

[Volokh, Eugene]

        I confess I continue to disagree with Bryan on the meanings of
various American Indian terms, but let's set that aside for now, because I
think that -- despite my earlier perception -- our disagreement might be
considerably deeper than that.

        I had thought at first that Bryan was only taking the view that the
government may deny (and perhaps must deny) student loans to students who go
to institutions whose "pervasive institutional identity" consists of a
message that the government disfavors -- whether it's a message of racial
superiority, gender difference leading to gender superiority, or perhaps
even support of Communism or Socialism or support of genetic engineering of
humans.

        But now it looks like Bryan is going further and saying that (1)
"sexual and racial harassment / [creation of] hostile environment" is
tantamount to discriminatory exclusion of students or faculty, and (2)
therefore the government may (and perhaps must) also deny student loans to
students who go to institutions in which such "hostile environments" are
present.  Since hostile educational environment law has no limitation to
situations in which the school has a supposedly offensive or bigoted
"pervasive institutional identity," this would be quite a dramatic
broadening.

        Certainly it makes perfect sense to me that a male student might
feel that a class in which the teacher routinely expresses the view that men
are morally inferior is a sexually hostile educational environment.  A black
student might feel that a class in which the teacher routinely expresses the
view that blacks are generally less intelligent than whites is a racially
hostile educational environment.  A Christian student might feel that a
class in which the teacher routinely expresses the view that religion is for
fools and weaklings, and that Christianity is inherently evil because it
rests on irrationality and superstitution, is a religiously hostile
educational environment.  If I understand Bryan's reasoning correctly,
speech that creates a hostile environment is tantamount to discrimination in
admissions, and the government need not allow student loan funds to be used
in schools that practice discriminatory admissions practices.  Therefore,
Title VI and Title IX can indeed be applied to bar the use of student loans
-- and other broadly available federal aid programs -- at schools that teach
allegedly bigoted ideologies.  Am I correct?

        It seems to me there are several options here:

        (1)  One can take the view, as I do, that Title VI and Title IX
essentially create limited public fora, and the government may not say "None
of this money can go to schools that advocate Communism / racism /
superiority of men / superiority of women / human genetic modification."

        (2)  One can take the view that the government may attach whatever
strings it likes, and can impose all the above conditions.

        (3)  One can take the view that the government may impose all the
above conditions but only as to institutions that have these disfavored
attitudes as their "pervasive institutional identity," under some definition
of that term.

        (4)  One can take the view that the government may not exclude from
this broad subsidy Communist advocacy, advocacy of human genetic
modification, or what have you, because these views are protected by the 1st
Am, even in the context of a subsidy program, so long as it's a broad one
such as Title VI and Title IX.  However, this 1st Am protection doesn't
cover racially, sexually, or religiously bigoted views, and therefore the
government may deny Title VI and Title IX funds (including student loan
funds) to schools that teach these views in a way that creates a racially,
sexually, or religiously hostile environment for some students in some
classes.

        (5)  (3) or (4) -- the government may impose all the above
conditions as to any schools which have a "pervasive institutional identity"
that's affiliated with (any) disfavored viewpoint, or that tolerate
specifically racially, sexually, religiously, etc. hostile environments in
some of their classes.

        I had at first thought that Bryan was urging option 3, but now it
sounds to me like he might be urging option 5.  I still think that option 1
is the most attractive of the lot, since otherwise the speech in the various
hypos I bring up -- the militant women's studies class, the gender
differences institute, the class which takes the view that religion is
stupid, the Karl Marx University, and the institute supporting human genetic
engineering -- would seem to be jeopardized.  But I'd love to hear the
matter clarified in more detail.

        And, Carthago delenda est, we see again how an expansive reading of
"hostile environment" principles jeopardizes free speech, not just in
workplaces but in universities, too (and why not other places that are
funded in part using government money, such as stadiums, parks, and wherever
else someone might say that the owners' or the patrons' speech creates a
"hostile environment" based on race, religion, sex, veteran status, etc.).

        Eugene

> -----Original Message-----
> From: Bryan Wildenthal [SMTP:bryanw at TJSL.EDU]
> Sent: Thursday, June 07, 2001 6:24 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Whoops, forgot one more hypo
>
> 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
>
>
>
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