First Amendment and antidiscrimination law

[Eugene Volokh]

        Though I would oppose the policy below as a substantive matter, it seems to
me that it is constitutionally protected by the First Amendment, even if,
say, state public accommodation laws or 42 U.S.C. sec. 1981 (as to race and
ethnicity) actually bar race-, ethnicity-, and sex-based selection of
speakers.  Any thoughts?  Seems like there'd be a clear 1st Am defense given
Dale -- any ideas about what the result would be had the Dale dissenters
prevailed?  (Note that any legal claim against this is purely
hypothetical -- the correspondent to my knowledge has no interest in suing.)

        On the other hand, is there any difference of constitutional significance
between this and a university choosing to discriminate based on race and sex
in hiring professors?  Let us assume for purposes of the question that the
relevant antidiscrimination statute is interpreted as mandating a per se ban
on discrimination, with no "affirmative action" exception.

        Eugene


-----Original Message-----

[Name omitted] has informed me that the American Psychiatric Association
has, this year, required that applicants who want to present a paper at the
annual meeting, indicate their race/ethnicity and sex on the application
form AND has told applicants that the purpose of this is to expand the
"diversity" among those presenting research.  The strong implication is that
applicants' identities will be part of the criteria used to select
presenters. . . .