The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Private Voluntary Bar Association Has First Amendment Right to Discriminate Based on Race, Sex, Sexual Orientation
Dec. 20's N.J. appellate court decision in Saadeh v. N.J. State Bar Ass'n (opinion by Judge Allison Accurso, joined by Judges Katie Gummer and Kay Walcott-Henderson) upheld various race, sex, sexual orientation, and other preferences that the New Jersey Bar Association—a private, voluntary organization that had as members 16,000 of the 98,000 New Jersey licensed lawyers—set up for various leadership positions. The court applied Dale v. Boy Scouts of America (2000), which held that the Boy Scouts had a First Amendment right to exclude gays from being assistant scoutmasters, who helped convey the Scouts' values; the same, the court held, protected the Association's decisions:
[T]he Bar Association qualifies as an expressive association, and … compelling it to end its practice of ensuring the presence of designated underrepresented groups in its leadership would unconstitutionally infringe its ability to advocate the value of diversity and inclusivity in the Association and more broadly in the legal profession.
The record reflects the Association's many forms of public expression and advocacy on matters of public concern, including the importance of diversity within the Association, in the legal community, and in continuing legal education…. [T]he Bar Association also engages in expressive activity in determining the composition of its governing Board of Trustees and other leadership bodies.
The Association's by-laws are explicit in requiring representation of a cross-section of its membership on the Board of Trustees, the Nominating Committee and JPAC [Judicial and Prosecutorial Appointments Committee]. In addition to allocating slots to members representing the county bar associations and a mix of sections, the by-laws also reserve slots for members representing demographic groups historically underrepresented in the Association's leadership, a consciously deliberate choice expressing the Association's vision of diversity and inclusion in the Association and in the broader legal community.
Given the Bar Association engages in expressive activity and that it does so through its method for filling at-large seats on its Board of Trustees, Nominating Committee and JPAC, we next consider whether compelling the Association to alter or eliminate its inclusion program "would significantly affect" the Association's "ability to advocate" its viewpoints. See Dale.
As the Bar Association argues in its brief, its "message is clear"; it "deeply values diversity in the legal profession," and it expresses that value in the "intentional makeup" of the Board and Committees that lead the Association. The Bar Association's decades-long commitment to diversifying its leadership, as established in the record, leaves no doubt about the sincerity of its commitment.
The Association maintains that forcing it to end its long-standing practice for filling at-large seats runs "the risk, borne out by history," that "underrepresented groups will not be guaranteed a seat at the table." It contends that would undermine the Association's "expression of commitment to promoting equal participation" within the Association and interfere with its efforts "to maintain a leadership that models the very diversity it champions publicly."
The Association argues "an unwanted imbalance in racial, ethnic, or gender representation within its leadership bodies" would impair its effectiveness as "a collective voice in matters of concern to the legal profession" and force it "to send the undesired message that it no longer cares, or cares as much, about diversity in general or about assuring access to leadership positions for underrepresented groups in particular." As the Supreme Court has commanded, we are obliged to "give deference to an association's view of what would impair its expression." "[T]he choice of a speaker not to propound a particular point of view … is presumed to lie beyond the government's power to control."
As the Bar Association's commitment to the importance of diversity in the legal profession has been much more a fixture of its private and public expressions than the Boy Scouts' former views on homosexuality were in its private and public messaging, we are satisfied the Association has established that forcing it to alter its method of filling at-large positions in its leadership would significantly burden its ability to express its views.
Having determined the Bar Association is an expressive organization and that forcing it to end its method of guaranteeing the participation of underrepresented demographic groups in its leadership "would significantly affect its expression, we inquire whether the application of New Jersey's public accommodations law to require" that the Association end its method of filling at-large seats on the Board of Trustees, Nominating Committee and JPAC "runs afoul of [the Association's] freedom of expressive association." …
There is no question but that New Jersey has a compelling interest in eliminating discrimination on the basis of race, color, national origin, sex, gender identity or expression, affectional or sexual orientation, and disability under its public accommodation and private association law. But, as in Dale, that interest—an interest the Association believes it is vindicating—does not justify the "severe intrusion" of prohibiting the Association from expressing views protected by the First Amendment—here, the value of demographic diversity in the legal profession and in its own leadership. The Association cannot be forced to send the message "that it no longer cares, or cares as much, about diversity in general or about assuring access to leadership positions for underrepresented groups in particular" by ending its practice of reserving thirteen of the ninety-four seats on its Board of Trustees, Nominating Committee and JPAC for members who are Hispanic/Latino/a/x, Asian/Pacific American, Black/African American, members of the LGBTQ+ community, women, senior lawyers over seventy, attorneys with disabilities, or attorneys who are members of a diversity bar association recognized by the Association….
Saadeh has a different vision of a diverse leadership for the Association, and he objects to the Association's vision because, among other reasons, it does not take him, someone "indisputably diverse" into account. {He describes himself as a Palestinian Muslim American.} Although arguing that "[a]ffirmative action plans have never been found to excuse discrimination committed by places of public accommodation, nor could they," he claims "[w]here the [Association] has gone awry is [in] refusing to address its historically discriminatory seats." He maintains the Association "must examine why those seats have historically been discriminatory, address the causes of the problem, and implement and execute a plan to solve it considering the causes." Doing so, he maintains, would enable the Association "to determine an actual factual predicate to underpin an actual affirmative action" program.
In ascertaining the groups it believes are underrepresented in its leadership, the Association does not consider members from the Middle East generally or members of Palestinian origin specifically, nor does it consider religion, notwithstanding that national origin and religion are both protected categories under the LAD. The Association is selective as to the categories it considers to be underrepresented in its leadership and values for inclusion in its at-large seats. Thus, although the Association refers to its program as one of expressive inclusion, it is, by design, also a form of expressive exclusion recognized in Dale….
Whether viewed as a policy of inclusion or exclusion, however, through its "intentional makeup" of its Board of Trustees, Nominating Committee and JPAC, the Association is expressing its view as to the meaning of the diversity and inclusion it champions. Applying the public accommodations provision of the LAD to compel the Association to abandon its method of selecting its at-large seats significantly burdens its right to oppose a leadership that doesn't guarantee underrepresented groups, as it defines them, "a seat at the table."
It is not for this court to approve or disapprove of the Association's view of diversity or how best to attain it within its leadership. See Dale. "[P]ublic or judicial disapproval of a tenet of an organization's expression does not justify the State's efforts to compel the organization to accept members where such expression would derogate from the Association's expressive message." As the Supreme Court has unequivocally held, "[w]hile the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government."
We close with a word as to why we have elected not to address whether the Association's method for filling at-large seats in its leadership is a valid affirmative action program under the LAD as the Association asserts, or an illegal quota system in violation of the LAD as Saadeh maintains, in favor of resolving this case based on First Amendment grounds. See Facebook, Inc. v. State (N.J. 2023) (noting the general rule of avoiding constitutional questions if a case can be resolved on another basis). We've resolved the case on the constitutional question because we can do so based on well-established precedent whereas the LAD issue is novel with little to guide our inquiry.
As the first judge to address this matter in the trial court noted, there is very little law in the area of affirmative action programs involving private, not-for-profit associations such as the Bar Association, in contrast to the well-established precedent in employment under Title VII, and the evolving precedent in higher education under the Equal Protection Clause of the Fourteenth Amendment, neither, in our view, a particularly good fit for analyzing the Association's program in this case….
We conclude that notwithstanding the LAD's prohibitions against discrimination in places of public accommodation and private associations, the Bar Association has a First Amendment right of expressive association that permits it to select the membership of its governing bodies through intentional inclusion of specified underrepresented groups, in furtherance of the ideological position it expresses in numerous ways: that it is necessary and beneficial to promote diversity and inclusion in New Jersey's legal profession. An exploration of the contours of a valid affirmative action program in a purely private, non-profit organization under the LAD will have to await a case in which applying the LAD will not trench on the organization's First Amendment expressive associational rights….
Some more details from the opinion as to the Association's exact practices related to race, sex, and sexual orientation:
[T]he most recent by-law language in the record (2020) provides:
Every At-Large Trustee shall be elected from, among and by the general members of the Association to represent segments of the membership not adequately represented on the Board of Trustees. The designation of these underrepresented segments of the membership to be considered when nominating candidates for the At-Large Trustee seats shall be made by the Board of Trustees prior to September 30 each year. If no designation is made, the designations in place for the prior year shall remain. Nothing in this section shall be construed to mean that a member from any underrepresented segment can be prohibited from serving on the Board of Trustees because another member from that same underrepresented group is already serving as a Trustee. The purpose of the At-Large Trustee positions is to promote inclusion of as many underrepresented segments of the membership on the Board of Trustees as possible. Any interpretation of this section of the Bylaws shall be consistent with that purpose.
In September 2021, the Association added members of a "diversity bar association" to the underrepresented groups to be considered for the three open at-large trustee seats. At the time suit was filed, the approved designations for at-large seats were, as expressed by the Bar Association: one seat each for members who are Hispanic/Latino/a/x, Asian/Pacific American, Black/African American, members of the LGBTQ+ community, or women; and three non-designated seats open to members from any of the following groups: Hispanic/Latino/a/x, Asian/Pacific American, Black/African American, members of the LGBTQ+ community, senior lawyers over seventy, women, attorneys with disabilities, or attorneys who are members of a diversity bar association recognized by the Association{: the Asian Pacific Lawyers of New Jersey, the Association of Black Women Lawyers of New Jersey, the Association of Portuguese Speaking Attorneys of New Jersey, the Caribbean Bar Association of New Jersey, the Garden State Bar Association, the Haitian American Lawyers of New Jersey, the Hispanic Bar Association of New Jersey, the Korean Bar Association of New Jersey, the New Jersey Women Lawyers Association, the New Jersey Muslim Lawyers Association, and the South Asian Bar Association of New Jersey}.
At-large members are also selected for the Bar Association's Nominating Committee and JPAC. The Nominating Committee is responsible for qualifying candidates for positions on the Board of Trustees and Nominating Committee, and delegates to the American Bar Association. The Association's by-laws provide:
The Nominating Committee shall, in its nomination of candidates, consider all appropriate factors, including but not limited to, service to the Association and its constituent parts, service to County and/or Diversity Bar Associations, the extent of practice in the State of New Jersey, including but not limited to government and corporate service, geographical balance, and the goal of bringing into the Association's leadership broad and diverse representation of all segments of the Bar. Before nominating a candidate to any respective position, the Nominating Committee shall consult with the groups outlined elsewhere in these Bylaws, but shall not accept endorsements for any candidate from any group.
The Nominating Committee consists of fifteen members: one presidential appointee; the immediate past president; the chair of the young lawyers division; four section chairs, not to include the women in the profession and minorities in the profession sections, two from the larger sections and one each from the mid-size and smaller sections; two county trustees from among those serving on the Board; the chair of the women in the profession section or the chair of the minorities in the profession section, alternating; two from underrepresented groups; and three elected by the general membership.
JPAC is responsible for conducting "a confidential review of prospective judicial and county prosecutor candidates and advises the Governor whether the prospective candidates are qualified for appointment for those offices" pursuant to a compact "established with the Governor." Members of JPAC are appointed by the president of the Association, who "shall consider the goal of broad diverse representation of all segments of the Bar." There are thirty members of JPAC: one from each county; the president, the president-elect and the immediate past president; one chairperson; two vice-chairpersons, one from South Jersey and one from North Jersey; and three at-large from underrepresented groups.
Lawrence S. Lustberg and Julia Bradley represent the Association.
