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Government Has No First Amendment Right to Discriminate

In November, Michigan voters adopted Proposal 2, a state constitutional amendment that bans racial preferences in state university admissions and in government contracts and employment. State universities like the University of Michigan are now flouting the will of the voters by claiming that they have a First Amendment right to discriminate based on race, no matter what the Michigan Constitution says. They have now challenged Proposal 2 in court, making the audacious claim they have a First Amendment “right” to use race in admissions. They cite Grutter v. Bollinger (2003), a Supreme Court decision which found a compelling interest in using race in college admissions to promote "diversity," for that claim. The Grutter decision was based partly on concepts of academic freedom that are, in turn, rooted partly in the First Amendment. But the Grutter decision, which they grossly exaggerate, does not support their argument. The fact that Grutter may have found a First Amendment interest in using race does not mean it found a First Amendment right to use race, as the Center for Individual Rights (CIR) points out in its brief defending Proposal 2. As CIR notes, the First Amendment exists to protect citizens against the government, not the government against citizens. That is why the courts have repeatedly held that government agencies, such as state universities, don't have First Amendment rights. See, e.g., CBS v. DNC, 412 U.S. 94, 139 (1973) (concurring opinion); Warner Cable Communications, Inc. v. City of Niceville, 911 F.2d 634, 638 (11th Cir. 1990); NAACP v. Hunt, 891 F.2d 1555, 1565 (11th Cir. 1990); Student Government Ass'n v. Board of Trustees, 868 F.2d 473, 481 (1st Cir. 1989); Estiverne v. Louisiana State Bar Ass'n, 863 F.2d 371, 379 (5th Cir. 1989). This distinction between interests and rights has been made time and again by the courts, by finding compelling First Amendment interests even when there is manifestly no right protected by the First Amendment. For example, private employers rightly aren't limited by the First Amendment, since the Supreme Court has emphasized "that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state." Hudgens v. NLRB, 424 U.S. 507, 513 (1976). But the Supreme Court has nevertheless observed that "statutory or common law may in some instances extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others." Thus, in Novosel v. Nationwide Ins. Co., 721 F.2d 894, 899 (3d Cir. 1985), an appeals court, while recognizing that the First Amendment itself doesn't limit private employers, nevertheless allowed an employee to sue a private employer under state common law for his discharge for publicly speaking out, because "the protection of an employee's freedom of expression" involves a "compelling" "societal interest." Using similar reasoning, other judges held that a city ordinance could validly protect a private employee who testified at a public hearing. See Carl v. Children's Hospital, 702 A.2d 159, 183 (D.C. 1997) (Schwelb, J., concurring). Similarly, Corry v. Stanford University (1995) upheld a state law that provided students at private colleges with the same rights that they would enjoy at state universities, even though students at private colleges have no free speech rights, because the state had a strong interest in protecting free expression on private college campuses. Another area of law that illustrates that interests do not equate to rights is the Supreme Court's decision to carve out an unwritten exception to the antitrust laws for political activity, somewhat similar to its decision in Grutter to carve out an unwritten exception to the civil rights laws for certain voluntary racial preferences. This is called Noerr-Pennington immunity, which immunizes political activity from the reach of the antitrust laws, based on First Amendment values. See, e.g., Eastern Railroad Conf. v. Noerr-Motors, 365 U.S. 127, 136-38 (1961). Although Noerr-Pennington immunity is based on First Amendment interests in protecting political activity from lawsuits, the immunity is broader than, and not "coextensive" with, the First Amendment," protecting some political activity "even though it is not conduct protected by the First Amendment." Cow Palace, Inc. v. Assoc. Milk Producers, 390 F.Supp. 696, 701 (D. Colo. 1975). Thus, even when political activity turns out to be unprotected by the First Amendment, it may still be immune from antitrust liability under Noerr-Pennington to avoid chilling political activity; "even independently illegal acts" are sometimes immune from antitrust liability under Noerr-Pennington, even where "separate civil or criminal actions might lie against the perpetrator." Schenley Industries, Inc. v. N.J. Wine & Spirit Wholesale Ass'n, 272 F.Supp. 872 (D. N.J. 1969). Note that the Grutter decision that the state universities rely on to challenge Proposal 2 involved Title VI of the Civil Rights Act, which regulates both private and public colleges alike, not just the Fourteenth Amendment, which regulates public colleges only. Private colleges, unlike public colleges, do have academic freedom “rights” (as opposed to just “interests”) and thus it made sense for the Supreme Court to limit the reach of Title VI so as not to intrude upon colleges' academic freedom. But while academic freedom may be a “right” for private colleges, it is merely an “interest” for state universities, which, as state actors, do not have First Amendment rights (as opposed to interests). The distinction between First Amendment interests and rights, and the fact that civil rights laws may be limited to protect mere interests, is also reflected in the administrative practices of the U.S. Department of Education, Office for Civil Rights, where I once worked as an attorney administering civil rights statutes such as Title VI. For example, although private colleges are not limited by the First Amendment, and private students do not have First Amendment protections against private colleges, the Department of Education's harassment regulations place the same limits on liability for both public and private colleges. Thus, the scope of liability under Title IX and Title VI is limited by First Amendment principles, regardless of whether those principles are directly enforceable rights. See Office for Civil Rights, Revised Sexual Harassment Guidance, 65 Fed. Reg. 66092, 66106 n. 109 (Nov. 2, 2000) (“The First Amendment applies to entities and individuals that are State actors. The receipt of Federal funds by private schools does not directly subject those schools to the U.S. Constitution...However, all actions taken by OCR must comport with First Amendment principles, even in cases involving private schools that are not directly subject to the First Amendment”). Since state universities have, at most, a First Amendment interest in using race to promote diversity, rather than an enforceable right to do so, the voters of Michigan can adopt a state constitutional provision, such as Proposal 2, that bans using race, without violating any rights held by the Universities. The Grutter decision conferred on state universities no “rights” to use race, as it made clear by pointing out that university racial preferences must contain sunset provisions that will terminate the use of race within 25 years. First Amendment “rights” don't have expiration dates. Grutter also pointed out that some states, such as California, already ban state colleges from using race in admissions, without expressing any disapproval of that fact. That is hard to reconcile with the Michigan colleges' claims that they have a vested right to use race. Indeed, it is absurd that Michigan state colleges — which are treated by the Constitution's Eleventh Amendment as arms of the state of Michigan, not separate entities — would even think of suing the State of Michigan to strike down a constitutional provision of their very own state. (Of course, even before Proposal 2, a college's ability to use race was not unlimited. The Supreme Court struck down more race-conscious admissions policies than it upheld, invalidating the University of Michigan's undergraduate admissions policy in the 2003 Gratz case, and a University of California law school's admissions policy in the 1978 Bakke case). This is certainly the understanding of Justice O'Connor, the author of the Grutter decision, who publicly stated after Proposal 2 passed that it was “entirely within the right and privilege of voters” to enact it, as John Fund noted in his November 20 column, "Preferences Forever?", for The Wall Street Journal's online OpinionJournal. The courts should reject state colleges' claim that they have a "right" to racially discriminate against their students.