Is There A First Amendment Right To Affirmative Action?

Having authored my all-time favorite law review article, when Sasha Volokh writes, I take him seriously. He asserts that what the Court took away in SSFA v. Harvard, it gave back in 303 Creative v. Elenis, creating a back door that would enable colleges to engage in racial discrimination under the protection of the First Amendment’s right to expressive association.

In the wake of Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, affirmative-action proponents should pursue a First Amendment approach. Private universities, which are speaking associations that express themselves through the collective speech of faculty and students, may be able to assert an expressive-association right, based on Boy Scouts of America v. Dale, to choose their faculty and students. This theory has been recently strengthened by 303 Creative LLC v. Elenis.

I discuss various complexities and counterarguments: (1) Race is not different than sex or sexual orientation for purposes of the doctrine. (2) The market context may not matter, especially after 303 Creative. (3) The conditional-federal-funding context does give the government more power than a simple regulatory context: the government will still be able to induce race-neutrality by the threat of withdrawing federal funds. But the unconstitutional conditions doctrine precludes draconian penalties like withdrawing all funds from the entire institution based only on affirmative action in some units. (4) This theory doesn’t apply to public institutions.

Is this a backdoor way to accomplish what the Supreme Court held could not be done? Obviously, but that’s the point.

Lorie Smith’s websites were pure speech. But so is virtually all your university’s activity. Everything significant that universities do—lectures, homework, exam-taking, paper writing—boils down to talking and writing. That includes the all-important transcript and diploma, which are just the university speaking to certify what the student has accomplished. If this isn’t pure speech, what is?

You think back to an older case: Boy Scouts of America v. Dale, where the Supreme Court upheld the Boy Scouts’ exclusion of a gay assistant scoutmaster even though this violated an antidiscrimination statute. The Boy Scouts engaged in expression, part of which included a position against homosexuality. Given this position, forcing the organization to accept a gay person in a leadership position “would, at the very least, force [it] to send a message, both to the youth members and the world, that [it] accepts homosexual conduct as a legitimate form of behavior.”

If denying the Boy Scouts the right to exclude a gay assistant scoutmaster because it would “send a message,” then allowing universities to use race in admissions also sends a message. What that message is will be subject to interpretation. Some might argue that the message is that it seeks to compensate for historic discrimination, that the educational value of a diverse student population is important, or that it prefers one race over another, a position that has in the past and may well in the future shift from time to time.

The First Amendment includes a right of “expressive association”: people have the right to group together to express their views. But freedom of speech implies a right against compelled speech: the right to speak includes the right to choose what to say, i.e., the right not to say certain things. In the expressive-association context: the right to speak in groups includes the right to choose whom to speak with, i.e., the right to choose whom not to associate with in speaking. We can call this principle—the marriage of the expressive-association right with the right against compelled speech—the principle of “expressive discrimination.”

What does this mean for your university’s affirmative-action programs? Your university is a speaking organization, whose “message” may include teachings about diversity. The university speaks through its administration, but also through its entire scholarly community, which includes faculty and students (perhaps also some staff). Using an antidiscrimination law like Title VI or 42 U.S.C. § 1981 to force the university to speak through people not of its choosing—which could mean a faculty and student body that don’t match the university’s notions of diversity—could impede the university’s ability to speak. The university’s expressive-association right can include the ability to take race into account to create a university community with the desired amount or type of diversity.

If accepted, can this argument be used to discriminate against black people, women, gay people and transgender people? Of course. At the moment, discrimination in favor of black people, and against Asian people, is in vogue, and so the assumption is that if affirmative action can be achieved by this path, it will serve a purpose many see as beneficial and fully justified. In other words, colleges will choose to use it for good rather than evil, unless you happen to be Asian.

There remains a question about whether the act of admissions is expressive association at all. Sure, much, if not most, of what universities do involves expression. Indeed, there are some raising qualms about this, arguing that universities should stop being quite so expressive, such as their support for terrorists and violence, as has been the current campus fashion. But I digest.

Nothing prevents a college from expressing its preference for a diverse student body or faculty without engaging in racial, sexual or other discrimination in admissions or hiring. That, however, isn’t the test of free speech, where the college can send the same message, perhaps a far more forceful message, through actions rather than words. You know, walk the walk rather than just talk the talk. Why shouldn’t Harvard be able to express its views on diversity by making sure its entering class includes 13% black students, matching the population, or that a black history prof be black? Is it any less communicative to express one’s beliefs through action rather than cheap talk?

The legal landscape on June 30 is thus more promising than it was on June 29. You can assert an expressive-association right to choose your faculty and students, because those are the speakers in your pure-speech organization. And this right can trump mere statutory antidiscrimination policies.

Or does the Equal Protection Clause and Title VI trump this emanation and penumbra of the First Amendment and preclude circumventing the Fourteenth Amendment to permit racial discrimination again, even if its most likely to be executed for beneficial purposes, at least for the moment?

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