The Right of Expressive Association and Private Universities— Racial Preferences and Speech Codes


In Boy Scouts of America v. Dale, the Supreme Court ruled that the Scouts has a First Amendment expressive association right to exclude gay adult volunteers. The reaction to Dale has divided along ideological lines. Conservatives generally support Dale because in their eyes it prevents government from taking sides in the culture wars. "Progressives," including many liberals who otherwise have strong civil libertarian instincts, oppose Dale because it seems to deal a blow to gay rights. Progressives also fear that organizations that wish to discriminate against other groups will rely on Dale for constitutional exemptions from anti-discrimination laws. As a legal matter, however, Dale was not about the Kulturkampf between gay rights activists and their conservative opponents, nor was it about a general "right to discriminate." Rather, the underlying issue in Dale was whether a private, non-profit expressive association has a First Amendment right to discriminate to prevent dilution of its message. Despite general liberal opposition to Dale, the opinion may protect some of the left's favorite causes. Part I briefly discusses the history of the expressive association right and its relationship to anti-discrimination law. Part II argues that Dale provides a constitutional defense to anti-discrimination laws by nonprofit organizations when the organizations' ideology requires discrimination. As discussed in Part II, both white and black racist and racialist groups have a right to exclude members of other races. Part III explains that the most significant nonprofit organizations with an ideological commitment to discrimination are not overtly racist organizations, but elite private universities that engage in racial preferences in favor of minority applicants. Private universities faced with reverse discrimination lawsuits may find constitutional respite in the right to expressive association if they are willing to admit that they engage in racial preferences. One way organizations protect their ability to express a particular message is by banning their opponents from speaking in their organizations. California's Leonard Law makes university speech codes illegal, and several state constitutions arguably do the same. Part IV opines that private university speech codes are protected against hostile regulations by the expressive association right recognized in Dale.