Dale v. Boy Scouts, again

[Leslie Goldstein]

And also behind a right of state schools to engage in affirmative action (altho
of course the "Anti-Aff-Action Five " view aff.action as usually a violation of
the 14th).   Why would a law violating pre-emption get more validity status than
a law that violated the 14th amdmt ?  Of course I believe a state school could
not "express" anti-black sentiment by its admission policy.  I have trouble with
the idea that pro-diversity policy somehow violates the 14th Am, but this may
well be where the Court is headed, although to my mind they have not clearly said
so yet.  I do believe Bakke atleast understood[per Powell] that 1st Amdment
rights of state shcools are implicated in aff. action policies.
LFG

Sanford Levinson wrote:

> Shameless self-promotion:  I have a piece forthcoming in the Fordham Law
> Review, entitled Compelling Collaboration With Evil?  A Comment on Crosby
> v. National Foreign Trade Council, a polemic against Crosby that notes,
> among other things, that the Court that unanimously said that Massachusetts
> had no right to refuse to deal with companies that did business in Myanmar
> ruled within a month that the BSA had an expressive right, in effect, to
> refuse to deal with gays.  If the BSA has such an expressive right, why
> doesns't the state of Massachusetts, at least in the absence of an explicit
> congressional override?  I don't think that Massachusetts has First
> Amendment rights as such, but if we take the idea of collective
> self-expression seriously, then should we accord states at least *some*
> such right?  I ask this as a real question, not simply rhetorically.  After
> all, a right of state self-expression is, at bottom, the defense of
> continuing to place Confederate flags on contemporary state flags and
> displaying offensive statuary in front of state capitals and the like.
>
> sandy
>
> At 07:19 AM 03/20/2001 -0700, you wrote:
> >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
> >  >>
> >