Expressive Discrimination: Universities' First Amendment Right to Affirmative Action

Maybe some universities can continue to do race-based affirmative action, even after SFFA v. Harvard.

My article Expressive Discrimination: Universities' First Amendment Right to Affirmative Action has finally been published by the Florida Law Review. In these days of federal attacks on private DEI, maybe some private universities might find this useful as a strategy for fighting back against the Trump Administration! I'll reproduce the Abstract and Introduction today, and continue to post the rest of the article next week. In the meantime (and especially if you want all the juicy footnotes), read the whole thing.

A note before starting: One of the earliest contributions to this literature was my co-blogger David Bernstein's 2001 article in the William & Mary Bill of Rights Journal. Another was David Geary's 2004 student note in The University of Chicago Law Review. Aside from that, there hasn't been much. A couple of articles were written more or less simultaneously with (and independently from) my article: Kent Greenfield's 2024 article in the American Journal of Law & Equality, and Part III of Taylor Barker's 2024 essay in the Stanford Law Review.

Abstract

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 from 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 such as withdrawing all funds from the entire institution based only on affirmative action in some units. (4) This theory doesn't apply to public institutions.

I also explore the potential flexibilities of this theory, based on recent litigation. The scope of the Boy Scouts exception might vary based on (1) what counts as substantial interference with expressive organizations, (2) what counts as a compelling governmental interest, and, most importantly, (3) what it takes for activity to be expressive.

Introduction

June is always a big month for Supreme Court watchers, but the last two days of June 2023 were more interesting than usual for constitutional and civil rights law. In one case, the Court made race-conscious affirmative action—which had long been only grudgingly accepted—even more difficult. But the decision in another case paves the way for an argument that private universities have a First Amendment right to engage in affirmative action.

On June 29, 2023, the Supreme Court decided Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, cutting back on the legality of race-conscious affirmative action in universities and all but overruling Grutter v. Bollinger. This was both a statutory and a constitutional opinion: all universities that accept federal funds are governed by Title VI of the Civil Rights Act of 1964; public universities are also governed by the Equal Protection Clause. But the two have been interpreted to impose identical standards, so the distinction didn't make much practical difference.

The very next day, the Court decided 303 Creative LLC v. Elenis. Lorie Smith, a website designer, decided to enter the wedding-website business; she didn't want to create websites promoting gay weddings or otherwise contradicting her beliefs, but that could have opened her up to prosecution under the Colorado Anti-Discrimination Act. The Supreme Court held that the statute couldn't be applied to force her to create websites she disagreed with. A website is just words and images—"pure speech." If the state made Smith create a website for a gay marriage—just because she was willing to create one for a straight marriage—that would be compelled speech, which would violate her First Amendment rights.

These two lines of doctrine don't usually talk to each other, but they should—especially now.

Suppose you're a private-university president who wants to have affirmative action for faculty hiring or student admissions (or both). You've tried to fit your program within the confines of Grutter. You've steered clear of impermissible interests such as racial balancing or remedying societal discrimination, avoided illegal methods such as quotas or inappropriately numerical targets, and stuck to approved interests such as the value of diversity. Then, on June 29, your general counsel said such efforts should be curtailed or abandoned. After sleeping on it—you sleep late the next morning, so you don't wake up until after the Supreme Court has released its opinions—is there anything you can do on June 30?

Yes, there is.

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."

Boy Scouts built on a previous case—the unanimously decided Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, which upheld the right of parade organizers to exclude an LGBT Irish-American organization from the parade even though this violated an antidiscrimination statute. The state courts interpreted this as an exclusion of LGBT people, but the Court recognized that this was an attempt to alter the parade organizers' message. Organizations have the right to choose their message, and sometimes the speaker's identity is the message. This is why you can limit yourself to actors of color for Hamilton or cisgender female contestants for a beauty pageant.

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. The First Amendment also includes a right of expressive association: people have the right to group together to express their views. 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 not only through its administration but also through its entire scholarly community, which includes faculty and students (perhaps also some staff). Using an antidiscrimination law such as 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.

Previously, one could have argued that the Boy Scouts expressive-discrimination principle was limited to noncommercial, volunteer organizations such as parades and the Boy Scouts and that it wouldn't protect the discrimination in contracting required for affirmative action for faculty and students. But this is where 303 Creative helps: the Court reaffirmed the right against compelled speech in an economic, for-profit context. Lorie Smith "offers her speech for pay and does so through . . . a company in which she is 'the sole member-owner.' But none of that makes a difference."

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.

And just in time! The day before yesterday, you could simply rely on your affirmative action program's legality. You've never before needed a constitutional theory that would let you ignore the statutes, but now you do. The expressive-association theory can give you what you need and more: if this works, not only can you go back to running your previous programs, but now you can run any affirmative action program you like, even one that would have been illegal under Grutter. If you like, you can use quotas and pursue outright racial balancing or try to remedy societal discrimination, rather than be limited to the single rationale of the educational benefits of diversity. If the government can't force the Boy Scouts to have a gay assistant scoutmaster or force Lorie Smith to design a pro-gay-marriage website, what right does it have to tell your university what speakers to choose?

If only Harvard's lawyers had argued this First Amendment theory. This should be the next frontier in private-university affirmative-action litigation—or the basis of a private university's defense next time it gets sued.

*     *     *

Part II of this Article presents this theory and explores some of its complexities.

The Supreme Court has never endorsed a strong form of expressive-association rights, whereby restrictions on an expressive organization's ability to choose its members is a per se burden. Antidiscrimination cases such as Bob Jones University v. United States and Roberts v. United States Jaycees are still good law. Your expressive-association claim will thus look better if your facts look a lot like those in Boy Scouts. But then you have a problem. The assistant scoutmaster was an authority figure who spoke on behalf of the organization and was expected to inculcate the organization's values. Many universities aren't like that—at least not with respect to faculty and students—because they have strong faculty- and student-based academic-freedom and free-speech norms.

The universities that are the best fit for an expressive-association theory are those that expect or require faculty and students to promote university values, which might require weakening academic-freedom and free-speech norms. Other universities might be able to use the theory, but it won't be as good a fit, so the result will be harder to predict.

Part III addresses various follow-on questions:

• Does the racial angle matter, given that the other cases arose in the context of sexual-orientation discrimination? (The cases don't support treating these different types of discrimination differently.)
• Does the market angle matter, since the other cases arose in the context of volunteer or nonprofit activity? (303 Creative suggests it doesn't.)
• What about laws such as Title VI, which don't regulate universities outright but merely impose conditions on recipients of federal money—bringing into play the looser constraints of the unconstitutional conditions doctrine? (This is the greatest hurdle. But the unconstitutional conditions doctrine bars pulling funding from the entire university based on discrimination by any single unit.)
• Could public institutions use this theory too? (No.)

Part IV asks how far this theory can go. Based on recent litigation, I identify three flexibilities in the doctrine, which help us understand what doctrinal movement is plausible.

• One is what it takes to make a substantial burden on an association's expression.
• Another is what governmental interests can be characterized as "compelling," so as to overcome the expressive-association right under strict scrutiny.
• But the biggest question is what activities are characterized as "expressive." That's a threshold issue—if the action isn't expressive, then First Amendment analysis isn't even relevant. You can't unilaterally make nonexpressive conduct, such as tax avoidance, expressive by talking about it or claiming civil disobedience. This threshold question preserves the core of antidiscrimination law in the vast majority of cases, even for expressive associations. But some activities, such as flag burning or parades, are inherently expressive. The test has to do with social expectations and how the particular conduct is likely to be perceived. This test is flexible, and different attitudes on the part of courts can lead to different results.

*     *     *

The key takeaway, though, is that—at least in private education, and possibly more broadly—the First Amendment expressive-association theory is potentially liberating for affirmative action. The expressive-association cases have been criticized as giving a free pass to racists, sexists, and homophobes. (Perhaps; but they have rights too.) But affirmative action can dwarf all of that. For decades, affirmative action has tried to fit into the constraining framework of Equal Protection/Title VI—satisfying neither affirmative-action opponents who advocate colorblindness nor proponents who would prefer programs forthrightly grounded in reparations for past injustices or remedying current inequalities. Now that Equal Protection/Title VI doctrine has come down strongly for colorblindness, the First Amendment theory has the potential (at least in some private universities) to convert affirmative action from a grudgingly allowed concession to a strongly protected right.