Dale/Runyon

[David Bernstein]

Looking at the case objectively, (1) the defendants did not make a First
Amendment claim in the freedom of associaiton portion of their briefs, (2)
the argument Marty quotes below is not an argument that the school's ability
to teach that segregation is good would be decreased, but that the parents
could not express their beliefs by sending their kids to a segregated school.
 If the Court had bought this argument, it would apply just as well to a
restaurant patron who claimed that the 1964 Civil Rights Act prevents him
from expressing his belief in segregation by going to a segregated
restaurant.  In my view, Dale stands for the principle that the government
cannot force associaiton that would dilute an organized group's message, not
that individuals have a right to associate with whom they please because of
their discriminatory beliefs; and (3) the Court of Appeals, as quoted by the
S.C.,  found that "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." 515 F.2d, at 1087.  Given those 3
factors, I maintain that it would have been extraordinary for the Court to
find in favor the defendants.  Yes, if the Court had a burning desire to find
for them, they could have ignored (1), reinterpreted (2) as an expressive
association claim, and ignored (3), but that is hardly the most obvious way
to go about things.
I make no claim that Runyon would have come out the other way at the time had
the lawyers for the D's made the type of argument that Roberts invites; the
Burger Court was much more (il)liberal on such matters than the Rehnquist
Court.  Nevertheless, the fact remains that there is no conflict between
Runyon and Dale.  And yes, Marty, I think properly argued, Runyon comes out
the other way.  Would I have wanted to be the 5th vote on that issue in 1976?
 No way!  Today, it troubles me less, because the most important private
educational institutions that have an ideology that requires discrimination
are private universities that engage in affirmative racial preferences, and
Runyon coming out the other way properly protects their right to continue to
do so.


David B.


In a message dated 3/5/01 2:47:49 PM Eastern Standard Time,
Marty.Lederman at USDOJ.GOV writes:

<<  To be sure, the petitioners in Runyon did not specifically make an
"expressive association" claim, because they did not anticipate Roberts.
Instead, their principal arguments were statutory (recall that there was a
very serious question of section 1981's application), and their First
Amendment claims were based on Pierce and Meyer, which undoubtedly (and
reasonably) appeared to be the best First Amendment precedents they had at
their disposal.  Accordingly, the argument was framed in terms of the
*parents'* expressive rights, rather than those of the schools, but the point
was essentially the same.  For instance, from the brief of Petitioner
Southern Indep. Sch. Ass'n (pp. 26-27):  "If the SISA parents ahve a right to
select a school for their children that expresses their own preferences and
beliefs, is that right invaded by the decisions below?  Clearly so.  Every
parent who selects a SISA school because of a belief that 'segregation is
desirable in education' has lost any opportunity of expressing that belief if
by the Thirteenth or any other amendment all public or private schools must
become desegregated."  See also the Reply Brief at 8:  "[T]he . . . proposals
to eliminate or integrate the SISA schools are directly related to the
restriction of communication by the SISA parents  -- to the point of
eliminating the last refuge in which their belief can presently find
expression.  The responding briefs claim that SISA parents will remain free
to believe in the value of segregation in education -- but argue the
contradictory proviso that this belief must only be expressed in an
integrated private school."
 >>