Dale v. Boy Scouts, again

[Darren Hutchinson]

"Would those on the list who think Dale is such a horror renounce in advance
their
willingness to defend Harvard, or Rice, or Stanford, or Random Liberal U.
from a reverse discrimination suit on expressive association grounds, simply
because such a defense would also aid groups they despise?" -- David
Bernstein

Are you asking this question of us as attorneys or academics?  Attorneys
often take positions without considering the broader political and
jurisprudential climates of their arguments --  they are, for what it is
worth -- charged with vigorously representing their clients.

As an academic concerned about Dale's erosion (invalidation?) of the
equality strand in Roberts, I certainly would take care not to encourage
wide application of that decision.  As an indvidual skeptical of Dale's
relevance to affirmative action -- and even more skeptical of the
proposition that Dale would compel the majority (out of intellectual
consistencey or otherwise) to take a different position than it currently
takes in affirmative action cases -- I do not believe that colleges and
universities could successfully invoke Dale to justify race-based
affirmative action.

There are various approaches that the Dale majority might take to
distinguish Dale from affirmative action in higher education: Title VI
applies the constitutional standard, which distinguishes private affirmative
action from Dale (at least for schools receving federal aid); education is
unrelated to race, and because Roberts requires a nexus between the
institution's mission and its discrimination, you lose (yes, the Court would
resurrect Roberts); because education is unrelated to race, your
"discrimination" (or "affirmative action") is merely a policy of invidious
exclusion and, applying Roberts/Runyon/Rotary Club, we cannot legitimate
sheer prejudice.  That is a start (and an end, since I do not wish to make
arguments for the Dale/Affirmative Action majority).  "Random Liberal U"
should not get excited about Dale....


Darren Lenard Hutchinson
Assistant Professor of Law
Southern Methodist University
P.O. Box 750116
Dallas, Texas 75275-0116
Phone: (214) 768-4639
Fax: (214) 768-3142
http://www.law.smu.edu/lawschool/faculty/hutchinson.htm

-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of David Bernstein
Sent: Monday, March 19, 2001 4:00 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Dale v. Boy Scouts, again


A Supreme Court decision upholding the right of a private association to
discriminate on the basis of race would have been unimaginable at the height
of the civil rights movement, when such a decision would have been seen,
rightly or wrongly, as the Court siding with the forces of racial reaction.
However, on the racial front, today it is private universities that engage
in
"affirmative" racial preferences that are the most prominent discriminators,
while organizations that have an ideology requiring discrimination against
URMs are generally marginalized, at best.  Even Bob Jones has changed its
policy in the face of public pressure!
    Marty has ignored my repeated provocations on the issue, but it seems to
me that Dale's most significant extension into the area of race, if it is
(and it should be) so extended, would be to protect private universities
from
a reverse discrimination lawsuits.  I don't think the O'Brien test,
advocated
by Marty, would lead to such a result.  Thus far, the only thing protecting
private universities from reverse discrimination lawsuits has been the
Center
for Individual Rights' libertarianism, which leads them to only go after
state schools.  Someone is bound to sue a private school eventually.  Would
those on the list who think Dale is such a horror renounce in advance their
willingness to defend Harvard, or Rice, or Stanford, or Random Liberal U.
from a reverse discrimination suit on expressive association grounds, simply
because such a defense would also aid groups they despise?

David Bernstein

In a message dated 3/19/01 4:38:10 PM Eastern Standard Time, LoAndEd at AOL.COM
writes:

<<
 For purposes of responding to Andy Koppelman's specific inquiry whether
Dale
 announces any "rule of law," Sam has a provocative footnote, 101 Colum. L.
 Rev. at 298 n.93, in which he writes:  "Since the Court in Dale did not
apply
 a functional analysis, it presumably would have yielded the same result had
 the Boy Scouts engage in exclusion along racial lines.  Such a result in a
 challenge to racial discrimination would be simply unimaginable." >>