Dale v. Boy Scouts, again

Michael McConnell mcconnellm at LAW.UTAH.EDU
Tue Mar 20 07:19:32 PST 2001


Unless you think, as the Court does, that private groups are entitled to
determine the content of their own message -- at least, so long as their
claim is not a sham. For the government to redefine a group's message is
itself a First Amendment violation of the first order.

Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112


-----Original Message-----
From: Darren Hutchinson [mailto:dhutchin at POST.CIS.SMU.EDU]
Sent: Monday, March 19, 2001 7:46 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Dale v. Boy Scouts, again


David asked an interesting question about Dale; my response probably relates
to the fact the I just completed an article analyzing ("attacking"? --
sounds so brutal) the decision.  The principle of law that you state sounds
lovely; whether the facts dictated the outcome in the decision is certainly
up to debate -- unless, of course, the NJ appeals court, the NJ Supreme
Court, and the 4 dissenters are patently "unreasonable."  The "principle of
law" does not determine whether the group's "message" included the
condemnation of "homosexuality."  It only gives us a framework for
analysis....


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 Michael McConnell
Sent: Monday, March 19, 2001 7:24 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Dale v. Boy Scouts, again


I am surprised at the resurgence of attacks on Dale. The principle of law
for which it stands strikes me as reasonably clear, and should be
uncontroversial at least among civil libertarians:
The government may not require a private, expressive, noncommercial group to
appoint leaders or spokespersons whom the group believes would undermine its
message.

Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112


-----Original Message-----
From: David Bernstein [mailto:Deliotb at AOL.COM]
Sent: Monday, March 19, 2001 6:16 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Dale v. Boy Scouts, again


I'm amazed how eager everyone is to attribute Dale to anti-gay animus on the
part of the majority, a proposition for which there is no direct evidence.
There are all sorts of ways the majority could have distinguished Dale from
cases involving race, sex, etc. (e.g., since laws affecting homosexual are
not subject to special scrutiny, unlike race and sex, under the 14th
Amendment...), leaving homosexuality as a particularly disfavored class, and
they didn't do so.  This suggests that the Court did not want the opinion to
be read as applying to gays only, and it won't be in the future.  And as far
as results-oriented jurisprudence goes, I see it far more in the dissent,
where Stevens suggests that the only reason that the First Amendment
wouldn't
apply in a case like Dale is for fear of the consequences to
antidiscrimination laws.  Since when is it the judiciary's role to refuse to
enforce acknowledged constitutional rights because it will inhibit
legislative activity that the Justices happen to think is important?

Of course, a willful S.C. can ignore its previous precedents whenever it
wants.  But if Dale is taken seriously outside its own context, there is a
clear expressive association argument for constitutional protection of
affirmative action preferences in private schools, to wit:   Many elite
private universities seek to instill in their students an appreciation of
the
importance of racial diversity at the highest levels of society,
particularly
given that members of minority groups still suffer from the effects of
historical and current racism.  These universities consider the promotion of
diversity so important that they use racial preferences in their admissions
process to achieve diverse student bodies.  Just as employing Dale would
have
diluted the Boy Scouts' anti-homosexual activity message, forcing private
universities to adopt race-neutral admissions policies would dilute their
pro-"diversity" message.  Not unreasonably, the administrators of elite
universities believe that if the law prohibits them from utilizing racial
preferences, instead in effect requiring them to have an overwhelmingly
white
(and, increasingly, Asian-American) class, it will be far more difficult to
promote to their students the ideals of racial diversity and assistance to
disadvantaged minorities.
    Moreover, having a racially-homogenous class inherently sends a negative
or at best indifferent message about the importance of diversity.  Engaging
in racial preferences on behalf of under-represented minorities, by
contrast,
sends a message to both students and the world at large that the university
rejects applying dubious "meritocratic" standards in a society that has what
many argue amounts to an entrenched racial hierarchy.  Recall that in Dale
the Court specifically stated that the Boy Scouts had a First Amendment
right
to teach "by example."

David Bernsteinm

In a message dated 3/19/01 7:42:40 PM Eastern Standard Time,
dhutchin at POST.CIS.SMU.EDU writes:

<< "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
  >>



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