In 1990, the Boy Scouts of America fired James Dale, a gay rights activist and assistant scoutmaster, after he came out out of the closet, citing the group’s longstanding opposition to homosexuality. Dale sued the Scouts under New Jersey’s civil rights law, which banned 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 discriminate.
In a 5-4 opinion that has never been overturned, Chief Justice William Rehnquist drew a link between exclusion and free expression. The Scouts had a viewpoint—homosexual conduct is wrong—that they were trying to impart to their members, he said; an openly gay scoutmaster would send the opposite message, which meant forcing the group to rehire Dale would violate its freedom of speech.
The verdict infuriated liberals, who blasted Rehnquist’s opinion as a set back for civil rights and an affront to fundamental fairness. “The Court has essentially said that freedom of 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 care journal is citing Dale to justify its own discriminatory practices: In response to a civil rights lawsuit, Health Affairs says it has a First Amendment right to exclude white applicants to the journal’s “health equity” fellowship—because doing so is the only way to convey its stance that “diverse” scholarship is “vital to health equity.”
The fellowship’s eligibility requirements, which explicitly bar whites from applying, “cannot be separated from the overall expressive goals” of the program, the journal argued in a September court filing. “As such, the 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 free association’s political undertones. Over the past half century’s civil rights battles, whether it was women seeking to join all-male clubs or blacks seeking to join all-white private schools, conservatives often emphasized the right to free association and argued that it trumped the demand for inclusion.
It was liberals who resisted First Amendment exceptions to anti-discrimination law—in part out of a concern that the exceptions would become the rule. If the Boy Scouts can exclude gays on free speech grounds, the ACLU queried in an amicus brief in Dale, couldn’t they also exclude Jews? Would a business run by segregationists be allowed to exclude blacks?
But with private institutions increasingly in thrall to a race-conscious progressivism, the left may be developing a new respect for free association—and the right for restrictions on it. For example, said David Bernstein, a professor at George Mason University Law School, if the Supreme Court outlaws affirmative action, some colleges may challenge the ruling by arguing that racial preferences are a form of protected speech. The logic would be that a non-diverse class makes it harder to promote a pro-diversity message and thus infringes on academic freedom.
“The left has always been fighting to make free association rights more limited,” Bernstein said. “Now it has a use for them.”
The Health Affairs lawsuit offers a preview of how these arguments could play out in court. In September, the conservative advocacy group Do No Harm—whose chairman, Dr. Stanley Goldfarb, is an avid Washington Free Beacon reader and the father of Free Beacon chairman Michael Goldfarb—filed a discrimination complaint against the journal, alleging that its “Health Equity Fellowship for Trainees” violated multiple civil rights laws. The fellowship, which provides publishing and mentorship opportunities, accepts only “American Indian/Alaskan Native, African American/Black, Asian American, Native Hawaiian and other Pacific Islander, and Hispanic/Latino” applicants, per the program’s eligibility criteria.
But just as the Boy Scouts argued that they could not convey their message about homosexuality without excluding gays, Health Affairs is arguing that it cannot convey its message about health equity without excluding whites. The filing quotes a line from Rehnquist’s Dale opinion—anti-discrimination law “cannot ‘justify … a severe intrusion on [an organization’s] right to freedom of expressive association'”—to suggest that the First Amendment licenses the fellowship criteria, which it calls an “integral part” of Health Affairs‘s equity initiative.
Do No Harm, on the other hand, is echoing the slippery slope argument the ACLU made in Dale, warning that Health Affairs‘s defense will invite a radical retrenchment of civil rights.
“Under Defendants’ theory of freedom of association, the First Amendment would also permit all-white fellowships,” Do No Harm said in an October filing. “This flies in the face of a mountain of precedent that accumulated for decades.”
Though the Supreme Court accepted the free association argument in Dale, it has rejected it in numerous other cases involving race discrimination—mostly against African Americans—and courts typically 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’d also have to let it prevail in the private school case,” Bernstein said. “That would undermine the enforcement of all anti-discrimination laws, so no court is going to buy it.”
Health Affairs declined to comment on the implications of its argument, saying only that it was “confident” of the fellowship’s legality.
Beyond the radical precedent it would set, Health Affairs‘s defense ignores a number of other differences between the Dale case and this one. For example, Bernstein noted, Dale wasn’t just a member of the Scouts, but a leader and role model charged with inculcating moral values, which meant his open embrace of homosexuality was likely to impact the group’s message. It is less clear how accepting white fellows would prevent Health Affairs from conveying that diverse scholars are “vital to health equity.”
Another difference, Bernstein said, is that the Scouts were arguably excluding Dale over his support for homosexual conduct—he was the leader of a local gay rights group—not his homosexual identity as such. While Rehnquist’s opinion is a bit hazy on that distinction, there is no corresponding ambiguity about the Health Affairs fellowship: It excludes all white applicants regardless of their views or conduct.
The Boy Scouts also did not take federal funds, which means they were not bound by Title VI of the Civil Rights Act, the law that bans race discrimination in goverment-funded entities. Health Affairs, however, is part of a nonprofit organization, Project HOPE, that receives millions in government grants.
“Substantively, Defendants would have this Court declare a federally subsidized First Amendment right to racially discriminate,” Do No Harm said in its October filing. “That declaration would significantly upend the anti-discrimination efforts made since the Reconstruction era.”