Commentary

Let Private Colleges Practice Affirmative Action

This month the Supreme Court will decide two momentous affirmative-action cases involving University of Michigan affirmative-action admissions policies. Commentators agree that the court will find that the 14th Amendment limits or (less likely) bans racial preferences in public colleges. Less attention has been paid to the fact that federal law requires that any limits the court places on public universities will also apply to private universities. Yet the First Amendment dictates that private universities are allowed to determine their own admissions policies, including affirmative action, free from the government’s interference.

The Supreme Court has held that Title VI of the 1964 Civil Rights Act, which bans racial discrimination by schools that receive federal funds-a category that includes almost all American universities-holds private universities to the same standards regarding racial discrimination as public universities are held to under the 14th Amendment’s Equal Protection Clause. So, whatever forms of affirmative action the court prohibits Michigan and other state schools to engage in will be forbidden to schools such as Yale, Princeton, and Amherst, as well.

Federal interference with private universities’ affirmative-action policies conflicts with the First Amendment right to associate for expressive purposes, known as the right to expressive association. A vigorous right to expressive association is crucial to the health of the First Amendment. Without the freedom to determine who one associates with, social, political, and religious movements could be easily suppressed by laws dictating the rules under which activists could interact.

The right to expressive association received the Supreme Court’s ringing endorsement in 2000 in the case of Dale v. Boy Scouts of America. In Dale, the Scouts successfully asserted a right to exclude a gay man named James Dale from working as a Scout leader. Chief Justice William Rehnquist wrote for the court that forcing the Scouts to grant Dale a leadership position “would significantly burden the Scouts’ right to oppose or disfavor homosexual conduct.”

“Dale’s presence in the Boy Scouts,” Rehnquist wrote, “would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”

State universities cannot assert an expressive association right. If the Supreme Court completely bans racial preferences in public universities in the Michigan case, either minority enrollments will plummet or universities will need to change and reduce their admission standards. Even if the court does not go that far, any serious constitutional limits it places on public universities’ admissions policies will either drastically reduce minority enrollment or force a lowering of overall standards.

However, there is no constitutional reason to impose such draconian solutions on private schools, which are not subject to the 14th Amendment’s ban on discriminatory government action. Indeed, the expressive association right should be read to forbid such an imposition. Dale gives nonprofit expressive associations a constitutional right to engage in discrimination, including race discrimination, when needed to avoid dilution of their message. The administrators of many universities sincerely believe that their schools should teach students the importance of assisting disadvantaged minorities and ensuring racial diversity in the upper echelons of American society, and that this is an important mission of the university.

Not unreasonably, the administrators believe that if the law prohibits them from using racial preferences, they will see their schools’ classes become overwhelmingly white (and, increasingly, Asian American) and it will become far more difficult to promote their schools’ egalitarian ideals to their students. Just as employing Dale would have diluted the Boy Scouts of America’s anti-homosexual activity message, forcing private universities to adopt race-neutral admissions policies would dilute their pro-diversity messages.

Moreover, a university that has a racially homogenous class inherently sends a negative or, at best, indifferent message to its students and the public at large about the importance of racial diversity. Engaging in explicit racial preferences to ensure a diverse student population sends the opposite message. To preserve racial preferences, universities can rely on Dale’s dictum that the Boy Scouts of America has a First Amendment right to teach “by example,” and argue that they too have a right to promote a moral vision unencumbered by government regulation.

Conditioning federal funding of universities on the abolition or modification of affirmative-action preferences, as will almost certainly occur after the Michigan cases, would place what constitutional scholars call an “unconstitutional condition” on that funding. Congress should amend Title VI to exempt private universities from interference with their admissions policies. If Congress fails to do so, universities should force the issue through lawsuits asserting their right to expressive association.

David E. Bernstein is a professor at the George Mason University School of Law and is the author of You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, forthcoming in October from the Cato Institute.