I wrote an article on this for a Stanford Law Review symposium on Chief Justice Rehnquist and Justice O'Connor. The issue is whether the government may limit a subsidy to groups that don't discriminate based on various criteria, given that the groups may have a constitutional right to so discriminate (in the wake of Boy Scouts v. Dale). Somewhat to my surprise, I've tentatively concluded that the answer is yes, notwithstanding Dale and Rosenberger v. Rector. I'm not a big fan of the antidiscrimination rules involved, but it seems to me they are indeed constitutional, even when applied to ideological groups that have ideological reasons to discriminate based on religion, sexual orientation, sex, race, ethnicity, and the like.

If you're up on the Court's First Amendment jurisprudence that touches on this subject -- and, better yet, its jurisprudence on refusals to subsidize abortion, private schooling, and other constitutional rights, a jurisprudence that I rely on heavily in my piece -- I'd love to hear your views. I have until March 3 to provide Stanford with my next draft, after which the editing process will get fast and furious. I should say (realizing that beggars can't be choosers) that while there are lots of interesting broad philosophical issues that my topic touches on, I would prefer to get comments from people who have read (or at least skimmed) the paper, and who are up on the somewhat technical legal doctrines that the paper relies on.

M. Lederman (mail):
Eugene: Must confess that I haven't read your paper yet -- but I'm looking forward to it. Not sure why you're surprised: Virtually all of the caselaw holds that the government doesn't have to subsidize discrimination. See this brief I worked on at DOJ. There's a bit of an issue, I suppose, when the nature of the "subsidy" is something as "common" as police services, or access to a (true) public forum, such as speakers' corner.

The more interesting questions, I think, involve whether and when the government is *forbidden* from subsidizing discrimination. Cf. Norwood.
2.17.2006 9:39pm
Hans Bader (mail) (www):
I think you mean "sex discrimination" rather than "race discrimination" in footnote 62 of your draft Stanford Law Review article.

The implications of this subject are vast.

Aside from common carriers, all institutions with limited resources discriminate based on some non-invidious criteria.

Some localities prohibit even rational forms of discrimination such as discrimination based on an applicant's criminal conviction or criminal record, the college one graduated from, and unsavory off-duty personal habits.

And virtually all institutions receive government benefits or subsidies in the form of tax deductions.

Even if conditioning access to government benefits based on a group's membership policy is not akin to regulating the content of speech, and thus is not subject to strict First Amendment scrutiny, as you suggest, it still should be subject to at least the intermediate scrutiny applied to content-neutral speech restrictions.

And many antidiscrimination rules should be recognized as not surviving even intermediate scrutiny, since they do not substantially advance any important state interest. Protecting people from merit-based discrimination does not serve any substantial state interest.

Even under non-strict scrutiny, the government still logically bears the burden of justifying its restriction on associational freedom or other First Amendment rights. See Greater New Orleans Broadcasting Association v. U.S., 527 U.S. 173 (1999) (even under intermediate scrutiny, government bears the burden of proving the necessity of its restriction on First Amendment commercial speech rights).
2.17.2006 11:38pm

The issue is whether the government may limit a subsidy to groups that don't discriminate based on various criteria

---whether the government may subsidize only those groups that don't discriminate based on various criteria---

The reverse of that is that government must subsidize every group if it subsidizes any group?

That government may not set requirements to be met in order to qualify for federal money so as to be able to differentiate among applicants, all of whom are engaging in constitutional activities?

Somewhat to my surprise

A surprise?
2.18.2006 1:05am
Eugene Volokh (www):
Lev: The reason I was somewhat surprised is that I thought that the Rosenberger argument -- which is that the government may not discriminate based on viewpoint in its generally available speech subsidy programs -- might well extend to government discrimination based on associational decisions.

Arguing for such an extension is not frivolous, since Rosenberger does show that the government sometimes must subsidize every viewpoint if it subsidizes most viewpoints (where subsidies to private speech are involved). But I found that such a Rosenberger-based theory was less persuasive than I at first thought it might be.
2.18.2006 2:40am

Time has passed, nevertheless...a comment.

From your kind response and original post, it appears to me that you were interested in arguing that government discrimination based on associational decisions is improper because of a belief it is improper, rather than in analyzing if it were from neutral or first principles. Else, why the surprise. It appears to me you assumed the answer you expected would "fall out" and were surprised when it did not. Not that there is anything wrong with that, but it brings to mind the apocryphal Mark Twain comment that what causes the the most trouble is not what we don't know, but what we do know that ain't so.


The issue is whether the government may limit a subsidy to groups that don't discriminate based on various criteria,

the government sometimes must subsidize every viewpoint if it subsidizes most viewpoints

The former is quite a broader statement of applicability than the latter, as it includes the concept "the government sometimes must subsidize every viewpoint if it subsidizes some, or any, viewpoints." Is arguing for that extension of Rosenberger frivolous? To lawyers, the ultimate moral relativists, I would say it is not, because the law is that which is successfully argued.
2.22.2006 12:04am
Mary Katherine Day-Petrano (mail):
Eugene, I read the article, and it was quite good, informative. My comments: The frameworks works well with civil rights other than disability. But consider the twists and turns this area of jurisprudence might take as applied to the Americans With Disabilities Act. Some thoughts that might make your article even more interesting:

(1) the ADA, unlike other anti-discrimination laws does require the State government to fund the anti-discrimination prohibitions. See, 2 USC Sec. 1503, disability/civil rights exclude from Unfunded Mandates Reform Act of 1995. That is a federal statutory funding obligation.

(2) at least in the area of State Courts, we know SCOTUS has said disability rights rise to the level of Consitutional rights. More recently, unanimous SCOTUS decision said monetary damages can be sought if disability discrimination involves Constitutinal rights (there, 8th Amendment). How far does this "as applied" approach extend? Don't know yet.

(3) ADA requires removal of several types of barriers, one of which are "communication" barriers, and provision of different types of accommodations and/or auxiliary aids and services include several addressing "communication" (e.g., provision of "equipment and devices;" "qualified interpreters;" etc.). Clearly, under the two previous SCOTUS cases, since communication strikes at the heart of the First Amendment, any disability discrimination involving the issue of communication would inplicate First Amendment Constitutional rights. Thus, under your article, one might find there are competing First Amendment rights.

(4) Title III (private businesses or organizations) are a little different than Title II; however, it would appear from my reading of more than 10,000 ADA cases over 16 years, that is is a bit easier to categorize more entities as Title II "instrumentalites" than to find a State actor under 42 USC Sec. 1983. Why, I am not sure, but perhaps it results from both Title II and III having numerous anti-perpetuation prohibitions. Your blog, for example, is likely a Title II "instrumentality" of UCLA.

(5) Don't forget the "modification of rules, polices, and practices" requirements in Titles II and III of the ADA, and the effect they might have on making a failure to modify a group speech exclusionary policy= discrimination. It is an interesting twist.

(6) Your religious exemptions do in fact hold under Title III of the ADA, no surprises there.

(7) It is very much more likely to find viewpoint based than content based in the area of disability, and that is just my experience over many many years. I don't really think disability would equate to electioneering groups and so forth.

Just my thoughts for what it's worth. A good article.
2.22.2006 2:24pm
Mary Katherine Day-Petrano (mail):
I almost forgot, both Titles II and III contain provisions addressing "associational" relationships, and all the ADA cases I have read indicate there is a bit of confusion about these provisions. Clearly, they give standing to even someone who is not disabled for discrimination aimed at them for associating with a disabled person or assisting the disabled to exercise their ADA rights. Interestingly, in my opinion, these provisions also implicate First Amendment concerns.
2.22.2006 2:30pm