In 1990, the Boy Scouts of America fired James Dale, a gay rights activist and assistant scoutmaster, after he came out of the closet, citing the group’s longstanding opposition to homosexuality. . Dale sued the Scouts under New Jersey’s civil rights law, which prohibited discrimination based on sexual orientation. But when the Supreme Court heard the case, Boy Scouts of America v. Dale, in 2000, it ruled that the Scouts had a First Amendment right to discrimination.
In a 5-4 opinion that has never been reversed, Chief Justice William Rehnquist drew a link between exclusion and free speech. The Scouts had a point of view – homosexual conduct is wrong – that they were trying to impart to their members, he said; an openly gay scoutmaster was sending the opposite message, which meant forcing the group to rehire Dale would violate his freedom of speech.
The verdict enraged liberals, who blasted Rehnquist’s opinion as a setback for civil rights and an affront to fundamental fairness. “The Court essentially said that free speech gives an organization the right to discriminate on the basis of an individual’s identity,” the American Civil Liberties Union said in a press release. “James Dale’s case is a clear example of why New Jersey passed a non-discrimination law in the first place — so qualified people don’t suffer discrimination because of who they are.”
Now, however, the tables have turned, and a progressive health journal is citing Dale to justify its discriminatory practices: In response to a civil rights lawsuit, Health affairs says he has a First Amendment right to exclude white applicants from the newspaper’s “health equity” scholarship because doing so is the only way to convey his position that “diverse” scholarship is ” vital to health equity.”
The fraternity’s eligibility requirements, which explicitly bar white people from applying, “cannot be separated from the overall expressive goals” of the program, the newspaper argued in a September court filing. “Thus, criteria are a form of expression protected by the First Amendment.”
The lawsuit, filed in the District Court for the District of Columbia, hints at a major shift in the political nuance of free association. In the civil rights battles of the last century, whether women sought to join all-male clubs or blacks sought to join all-white private schools, conservatives often emphasized the right to free association and supported that trumped the request for inclusion.
It was liberals who resisted the First Amendment’s exception to anti-discrimination law—in part out of a concern that the exception would become the rule. Whether the Boy Scouts can exclude homosexuals on free speech grounds, the ACLU questioned in an amicus brief in Dale, couldn’t they also exclude the Jews? Will a business run by segregationists be allowed to exclude blacks?
But with private institutions increasingly subject to race-conscious progressivism, the left may be developing a new respect for free association — and the right for restrictions. For example, said David Bernstein, a professor at George Mason University Law School, if the Supreme Court bans affirmative action, some colleges may challenge the ruling arguing that racial preferences are a form of protected speech. The logic would be that a non-diverse class makes it more difficult to promote a message in favor of diversity and thus violates academic freedom.
“The left has always fought to make free association rights more limited,” Bernstein said. “Now he has a use for them.”
U Health affairs lawsuit offers a preview of how these arguments might play out in court. In September, the conservative advocacy group Do No Harm, whose president, Dr. Stanley Goldfarb, is an avid. Washington Free Beacon reader and father of Free beacon President Michael Goldfarb – filed a discrimination complaint against the newspaper, charging that its “Health Equity Fellowship for Trainees” violated several civil rights laws. The fellowship, which provides publishing and mentorship opportunities, only accepts “American Indian/Alaskan Native, African American/Black, Asian American, Native Hawaiian and other Pacific Islander, and Hispanic/Latino” applicants, according to the program’s eligibility criteria.
But as the Boy Scouts argued that they could not convey their message about homosexuality without excluding gays, Health affairs he argues that he cannot convey his message about health equity without excluding white people. The filing quotes a line from Rehnquist’s Dale opinion – the anti-discrimination law “cannot” justify … a severe intrusion on [an organization’s] right to the freedom of expressive association'” – to suggest that the First Amendment licenses the criteria of fraternity, which he calls an “integral part” of Health affairsthe equity initiative.
Do No Harm, on the other hand, repeats the slippery slope argument that the ACLU made in Dalenoting that Health affairsThe defense of the guest to a radical reduction of civil rights.
“Under the defendants’ theory of freedom of association, the First Amendment also permits all white fellowship,” Do No Harm said in an October filing. “This flies in the face of a mountain of precedent that has accumulated over decades.”
Although the Supreme Court accepted the free association argument Dale, has rejected it in numerous other cases involving race discrimination—mostly against African Americans—and courts generally treat racism as a uniquely invidious prejudice. In Runyon v. McCary, for example, an all-white private school claimed it had a First Amendment right to exclude black children because of its sincere belief in segregation. The Supreme Court rejected that reasoning 7-2, holding that the belief in segregation was different from the practice of it.
“If you allow the free speech argument to prevail in the Health affairs case, you would have to let it be deprived even in the private school case,” said Bernstein. “This would undermine the enforcement of all anti-discrimination laws, so no court will buy it.”
Health affairs he refused to comment on the implications of his argument, saying only that he was “confident” of the legality of the brotherhood.
Beyond the radical precedent it would create, Health affairs‘s defense ignores a number of other differences between the Dale case and this. For example, Bernstein noted, Dale was not only a member of the Scouts, but a leader and role model charged with instilling moral values, which meant that his open embrace of homosexuality was likely to impact the message of the group. It is less clear how the acceptance of white partners prevents Health affairs to convey that different scholars are “vital to health equity”.
Another difference, Bernstein said, is that the Scouts were undoubtedly excluding Dale for his support of homosexual behavior – he was the head of a local gay rights group – not his homosexual identity as such. While Rehnquist’s opinion is somewhat hazy on that distinction, there is no corresponding ambiguity on the Health affairs Fraternity: Excludes all white candidates regardless of their opinions or behavior.
The Boy Scouts also took no federal funds, meaning they were not bound by Title VI of the Civil Rights Act, the law that prohibits racial discrimination in government-funded entities. Health affairshowever, he is part of a non-profit organization, Project HOPE, which receives millions in government grants.
“Essentially, the defendants would have this Court declare a federally-funded First Amendment right to racially discriminate,” Do No Harm said in its October filing. “This statement would significantly undermine the anti-discrimination efforts made since the Reconstruction era.”