BOY SCOUTS RULING SUPPORTS FRATERNITY RIGHTS

James C. Harvey

Mr. Harvey is an attorney in Newport Beach, California. He is a member of Phi Delta Theta and a member of the NIC Law Committee.

On June 28, 2000, the United States Supreme Court issued its ruling in Boy Scouts of America v. Dale.¹ The case  is significant because for the first time, the Supreme Court upheld an organization’s assertion of “freedom of association” as a defense against application of a state antidiscrimination statute. The decision also further developed the principles governing freedom of association in a way which should have positive implications for Greek-letter student organizations.

The issue in Dale was whether the State of New Jersey could force the Boy Scouts to reinstate James Dale, an assistant scoutmaster whose membership was revoked when the organization learned that he was homosexual and a gay rights activist. In a 5-4 decision authored by Chief Justice Rehnquist, the Court held that forcing the Boy Scouts to reinstate Dale would violate the Scouts’ First Amendment right of “expressive association.” The Court  accepted  the Boy Scouts’ assertion that the organization’s values are inconsistent with homosexual conduct, and agreed that Dale’s membership would force the Boy Scouts to  compromise those values.

The Right of Expressive Association

Sixteen years ago, in Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court was confronted with a dispute over the State of Minnesota’s attempt to compel its Jaycees chapters to admit women. In considering the  issue, the Court explained that there are two types of freedom of association. First, there is the right to associate with others in close personal relationships, which the Court labeled the right of “intimate association.” Second, there is the right to associate with others to conduct activities protected by the First Amendment, which the Court labeled the right of “expressive association.” As the Court noted in Roberts, the right of free expression implies a corresponding right to join with others in pursuit of political, social, economic, educational, religious, and cultural ends. The right of association also implies the right not to associate with those who do not share a group’s ideals. The government may not interfere in the internal affairs of such an organization except to advance a compelling state interest, and only using the method having the least impact on the nature of the organization’s speech.

[For the first time, the Supreme Court upheld an organization’s assertion of “freedom of association” as a defense against application of a State antidiscrimination statute.]

Reviewing the evidence in Roberts, the Court found that a substantial part of the Jaycees’ activities consisted of advocacy on political and social issues, as well as civic and charitable activities, all of which are protected forms of expression under the First Amendment. The Court made similar findings regarding Rotary Clubs in the later case of Board of Directors of Rotary Intl. v. Rotary Club, 481 U.S. 537 (1987), which also involved the compelled admission of women. Both Jaycees chapters and Rotary Clubs were therefore held to be expressive associations. However, both the Jaycees and Rotary still lost their cases; the Court found that eliminating discrimination against women was a compelling state interest, and that the admission of women to those groups would not affect the nature of their expressive activities.

Are Fraternities Expressive Associations?

After Roberts and Rotary, it seemed that only groups which conducted substantial political, civic, religious, or charitable activities could qualify as expressive associations. No court has ever been asked to decide if a Greek-letter organization qualifies as an expressive association, but the question has been debated in the pages of Fraternal Law and elsewhere. Some observers dismissed fraternities as “purely social” organizations, presuming that they engage in no activities protected by the First Amendment. Some argued that fraternities do conduct at least some expressive activities, such as charitable events and religious worship; still others argued that the very purpose of a fraternity is expressive, finding support in a portion of Justice O’Connor’s concurrence in Roberts:

“Protected expression may also take the form of quiet persuasion, inculcation of traditional values, instruction of  the  young,  and  community service …

Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement.”

However, Justice O’Connor’s comments were not contained in the opinion of the Court in Roberts, and it was not until Dale that the Court confirmed that a group such as the Boy Scouts or a fraternity could be considered an “expressive” association. As the Dale Court explained:

“The First Amendment’s protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression, whether it be public or private.”

The Court quoted portions of the Boy Scouts’ mission statement, Scout Oath, and Scout Law, and concluded:

“Thus, the general mission of the Boy Scouts is clear: To instill values in young people….

During the time spent with the youth  members, the scoutmasters and assistant scoutmasters inculcate them with the Boy Scouts’ values – both expressly and by example. It seems indisputable that an association that seeks to transmit such a system of values engages in expressive activity.”

The Dale Court then cited with approval the above quoted portion of Justice O’Connor’s concurrence in  Roberts, thereby adopting her views as the opinion of the majority of the Supreme Court.

Dale seems to settle the question of whether Greek-letter organizations are “expressive associations” entitled to First Amendment protection. The very purpose of a fraternity or ( sorority is the  development  of  character  traits  such  as loyalty, integrity,  and  self-awareness  through   association with close friends, and this is closely analogous to the Boy Scouts’ mission to instill positive values in its members.

Who Determines Values?

Of course, there are critics who dispute whether developing character is really the purpose of a  fraternity; they suggest that modem fraternities are nothing more than “superficially selective drinking clubs” whose stated values and principles are just window dressing. The issue is one of perspective: From whose vantage point do we determine the values of an organization? Its rank and file members? Its national leadership? The public? In Dale,  the  Supreme Court addressed the question of who has the power to determine the nature of a group’s expression, and whether it matters that individual members or chapters may not practice, support, or even acknowledge those values.

In Dale, the Scouts asserted that its stated values, which include urging its members to be “morally straight” and “clean” as part of the Scout Oath, were inconsistent with homosexual behavior. The New Jersey Supreme Court rejected that assertion, finding that a position on sexuality was not part of the Scouts’ values. The U.S. Supreme Court disagreed, holding that it was not the place of the court to second-guess the meaning of a group’s expressed values:

“[O]ur cases reject this sort of inquiry, it is not the role of the courts to reject a group’s expressed values because they disagree with those values or find them internally inconsistent.”

The Court examined the evidence, and determined that the official position of the Boy Scouts, as expressed by its national leadership, is that homosexuals cannot serve as scoutmasters. The fact that many members might disagree with that position, or be unaware of it, was deemed irrelevant:

“The Boy Scouts takes an official position with respect to homosexual conduct, and that is sufficient for First Amendment purposes.”

Therefore, after Dale, it seems clear that a Greek-letter organization will be judged, for associational purposes, by the values and positions stated by its national or international leadership, or set forth in its official publications. Fraternities will not be defined by the conduct of their undergraduate chapter members, nor by the opinions of hostile university administrators, nor by media stereotypes.

Fraternities and the Healy Burden

Dale also seems to resolve any lingering doubts about whether Greek-letter organizations are protected by the landmark case of Healy v. James, 408 U.S. 169 (1972), in which the Supreme Court held that unless a student group disrupts campus order, it must be granted the benefits of university recognition and be allowed to  conduct  its activities free of interference. Although the Healy decision was stated in broad terms, the case actually concerned a denial of recognition to a student political group, which was clearly an expressive association. After Healy, it was suggested that the ruling only applied to that type of organization, not to a nonpolitical “social” group like a fraternity. Many universities have used this perceived difference to justify singling out their Greek-letter groups for extensive regulation. Since after Dale it appears that fraternities are expressive associations, they are entitled  to the same protections as any other student group.

This has important practical implications.  Under Healy, a university must meet a “heavy burden” to justify denying a student group the benefits of campus recognition, and may withdraw those benefits only if the students refuse  to abide by reasonable rules of conduct. However, either ignoring Healy or arguing that it does not apply to “social” groups, many universities have made fraternity recognition a privilege, not a right.

This development in the law should assist Greek-letter organizations if they find themselves in disputes or litigation in regard to their right to remain free of university interference.

Editor’s Note

Timothy M. Burke

Neither Jim Harvey, the author of the accompanying article, nor the publishers of Fraternal Law, advocate the use of membership selection policies designed to exclude broad groups of people.

While the Supreme Court’s decision in Boy Scouts of America v. Dale upheld the ability of the Boy Scouts to exclude a homosexual from participation in the Scouts, it should by no means be read as carte blanche approval of discriminatory membership policies or practices. Federal law and the laws of most states and many municipalities prohibit discriminatory practices in a wide variety of situations. At the state and local levels, antidiscrimination regulations vary greatly in extending protections to many categories of people. Particularly those prohibitions against discrimination in the providing of public accommodations could, in a different factual setting than the Boy Scouts case, cause problems for a fraternity group which acted in a discriminatory manner toward a protected class where that group was providing housing and/or food service. It should also be kept in mind that the Supreme Court’s decision in the Boy Scouts case was a narrow 5-4 decision and clearly a close case. Slightly different facts could result in a very different decision.

The bottom line is that membership selection decisions should be made in a positive manner on the basis of the criteria contained in the organization’s governing documents. Denying membership  solely on the basis of some broad category  into which an individual is pigeonholed based on their race, national origin, religion, handicap status,  veteran’s status, or sexual  preference is an invitation to legal trouble.

SECOND GREAT MIGRATION

More than 9 million legal immigrants were admitted to the United States between 1991 and 2000. The previous record was set in the first decade of the 20th Century with 8.8 million immigrants. The Federal Reserve Bank of Dallas recently estimated that in the first decade of the 21st Century, l I million immigrants will arrive. This does not count illegal arrivals.

Their places of origin generally are in Latin America and Asia. The immigrants are relatively young. The percentage of those in the age range of 10-34 is substantially greater than the native born U.S. population. Approximately 38% of the foreign born men in 1998 lacked high school diplomas as compared with approximately 8% of native born men.

A recent study published by the Federal Reserve Bank of Dallas suggests that the great migration is one of the reasons that we have had outstanding prosperity in the 90’s. Had we not had this supply of new work rs, there would have been cost push inflation generally associated with a rising business cycle.

The implications of this information for the Greek world are profound. As the children of these immigrants finish high school and enter colleges, campus after campus will experience a dramatic change in the ethnic composition of its student body. Greek organizations that are hospitable to students of non-European ancestry will prosper. Those who are not may be short on membership.