The Second Circuit just held today, in Boy Scouts of America v.
Wyman,
http://www.ca2.uscourts.gov:81/isysnative/RDpcT3BpbnNcT1BOXDAyLTkwMDBfb3BuLn
BkZg==/02-9000_opn.pdf, that Connecticut may exclude groups that
discriminate based on sexual orientation (including the Boy Scouts) from its
employee charity drive. The drive, the Court said, citing Cornelius, is a
nonpublic forum; and in such a context, the government is entitled to
exclude discriminating groups even when that discrimination constitutes the
exercise of First Amendment rights.
This is a plausible position, quite possibly the correct one; but I
wonder how it can be persuasively reconciled with Hsu v. Roslyn Union Free
School Dist., http://laws.findlaw.com/2nd/957311.html, which held that the
Equal Access Act barred schools from excluding groups based on the
discriminatory selection (there, religious discrimination) of group leaders.
The Hsu court acknowledged that the First Amendment precedents are relevant
to the Equal Access Act only by analogy, but it thought that the analogy was
pretty persuasive. In particular, it said:
In interpreting the term "speech" [for Equal Access Act purposes], we are
also guided by a set of Supreme Court cases similar to Hurley , although
analyzed under the Court's freedom of association jurisprudence. The right
to free association for expressive purposes is implicit in the First
Amendment free speech guarantee. See NAACP v. Alabama ex. rel. Patterson ,
357 U.S. 449, 460-61 (1958); Abood v. Detroit Bd. of Educ. , 431 U.S. 209,
233 (1977). That right is an instrumental one: expressive association is
protected "as an indispensable means of preserving other individual
liberties." Roberts v. United States Jaycees , 468 U.S. 609, 618 (1984). The
right to associate also includes the right not to associate. Id. at 623.
The Supreme Court examined the scope of this right in Roberts and Board of
Directors of Rotary Int'l v. Rotary Club of Duarte , 481 U.S. 537 (1987). In
both cases, the Court upheld the application of state antidiscrimination
laws to private civic clubs that wished to continue their exclusion of women
as members. Although the Court determined that the statutes infringed on the
expressive association rights of the private clubs, "that infringement [was]
justified because it serves the State's compelling interest in eliminating
discrimination against women." Rotary , 481 U.S. at 549 . See also Roberts ,
468 U.S. at 623 ; New York State Club Ass'n, Inc. v. City of New York , 487
U.S. 1, 11-12 (1988) (rejecting a facial challenge to a nondiscrimination
statute, on the ground that the freedom of expressive association was not
infringed upon by all applications of the statute).
Roberts and Rotary (like Hurley ) are analytically distinct from this case,
because they involve constitutional rights, not statutory ones. Nevertheless
(like Hurley ) they assist our interpretation of the term "speech" in the
Equal Access Act. The Act, which protects students only against the denial
of equal access on the basis of their "speech," does not expressly protect
their right to "associate." But since the grant of speech protection is to
"students who wish to conduct a meeting," the right to associate for the
purpose of holding such a meeting is a necessary corollary. The Act's
authors made it clear that the language of � 4071(a) was intended to protect
both free speech and free association rights of certain student clubs. 130
Cong. Rec. 19,216 (1984) (statement of Sen. Denton); id. at 19,217 (Sen.
Hatfield). Thus, the Act contains an implicit right of expressive
association when the goal of that association is to meet for a purpose
protected by the Act.
As in Roberts and Rotary , when the students' desire to hold a meeting
covered by the Act involves a decision not to associate with other students,
that decision, depending on its purpose, may constitute an exercise of the
students' right of expressive association. On the one hand, an exclusion
solely for reasons of hostility or cliquishness, with no direct bearing or
effect on the group's speech, does not implicate the right to expressive
association. But expressive association is implicated when the decision to
exclude is made in order to foster the group's shared interest in particular
speech. See William P. Marshall, Discrimination and the Right of Association
, 81 Nw. U. L. Rev. 68, 78-80, 90-91 (1986). As the Court said in Roberts ,
a regulation that prevents a group from excluding certain people "may impair
the ability of the original members to express only those views that brought
them together." 468 U.S. at 623 (emphasis added). Similarly, the Court in
New York State Club Association stated that an association might be able to
show that it is organized for specific expressive purposes and that it will
not be able to advocate its desired viewpoints nearly as effectively if it
cannot confine its membership to those who share the same sex, for example,
or the same religion. 487 U.S. at 13 (emphasis added).
It is undisputed that the decision by the Walking on Water Club to impose a
religious test for leadership positions has been made purely for expressive
purposes--to guarantee that meetings include the desired worship and
observance--rather than for the sake of exclusion itself.
Are these cases both rightly decided? If so, what's the most
sensible way of reconciling them? After all, given that the Equal Access
Act applies to places that are themselves nonpublic fora (cf. Lamb's
Chapel), and given that Hsu treats discrimination based on expressive
association as tantamount to impermissible discrimination based on speech,
why wouldn't that apply equally in Boy Scouts?
Eugene
