Home Message service Meet the left-leaning health group citing Boy Scouts of America as justification for excluding white people from prestigious scholarship

Meet the left-leaning health group citing Boy Scouts of America as justification for excluding white people from prestigious scholarship


In 1990, the Boy Scouts of America fired James Dale, a gay rights activist and assistant scout leader, after he came out of the closet, citing the group’s longstanding opposition to homosexuality. Dale sued the scouts under New Jersey’s civil rights law, which prohibited discrimination based on sexual orientation. But when the Supreme Court heard the case, Scouts of America v. Valley, in 2000, it ruled that Boy Scouts had the right to discriminate under the First Amendment.

In a 5-4 opinion that was never overturned, Chief Justice William Rehnquist linked the exclusion to free speech. The Boy Scouts had a point of view – homosexual conduct is wrong – which they were trying to convey to their members, he said; an openly gay scoutmaster would send the opposite message, which meant that forcing the group to rehire Dale would violate his freedom of speech.

The verdict infuriated liberals, who called Rehnquist’s opinion a rollback for civil rights and an affront to fundamental fairness. “The Court essentially said that freedom of expression gives an organization the right to discriminate based on an individual’s identity,” the American Civil Liberties Union said in a press release. “The case of James Dale is a clear example of why New Jersey passed a non-discrimination law in the first place – so that qualified people are not discriminated against because of who they are.”

Now, however, the tables have turned and a progressive healthcare journal cites Valley to justify its own discriminatory practices: In response to legal action, Health Affairs says he has the First Amendment right to exclude white applicants for the journal’s “health equity” fellowship – because that’s the only way to convey his position that “diverse” research is “vital to health equity”.

The scholarship’s eligibility requirements, which explicitly prohibit white people from applying, “cannot be separated from the overall expressive goals” of the program, the newspaper argued in a September court filing. “As such, criteria is a form of expression protected by the First Amendment.”

The lawsuit, filed in District Court for the District of Columbia, hints at a major shift in the political nuances of free association. In the civil rights battles of the past half-century, whether women seeking to join all-male clubs or blacks seeking to join all-white private schools, conservatives have often emphasized the right to free association and argued that it outweighed the demand for inclusion.

It was the liberals who resisted the First Amendment exceptions to the anti-discrimination law, in part out of fear that the exceptions would become the rule. Whether the Boy Scouts can exclude gay people for free speech reasons, the ACLU asked in an amicus brief in Valley, could they not also exclude the Jews? Would a company run by segregationists be allowed to exclude black people?

But with private institutions increasingly in the grip of race-conscious progressivism, the left can develop a new respect for free association — and the right for its restrictions. For example, said David Bernstein, a professor at George Mason University School of Law, if the Supreme Court bans affirmative action, some colleges could challenge the ruling, arguing that racial preferences are a form of protected speech. The logic would be that an undiverse class would make it more difficult to promote a pro-diversity message and thus undermine academic freedom.

“The left has always fought to make free association rights more limited,” Bernstein said. “Now he has a use for them.”

The Health Affairs The lawsuit offers a glimpse of how these arguments might play out in court. In September, the conservative advocacy group Do No Harm, whose chairman, Dr Stanley Goldfarb, is an avid Free Washington Beacon reader and father of Free tag President Michael Goldfarb – filed a discrimination lawsuit against the newspaper, alleging that its “health equity scholarship for interns” violated several 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” as per program eligibility criteria.

But just as the Boy Scouts argued that they could not convey their message about homosexuality without excluding gay people, Health Affairs argues that he cannot deliver his message on health equity without excluding white people. The record quotes a line from Rehnquist Valley opinion—the anti-discrimination law “cannot ‘justify…serious intrusion on [an organization’s] right[] to freedom of expressive association “” – to suggest that the First Amendment allows criteria for fellowship, which it calls an “integral part” of Health Affairsequity initiative.

Do No Harm, on the other hand, echoes the slippery slope argument that the ACLU made in Valleywarning that Health AffairsThe defense of will invite a radical retrenchment of civil rights.

“Under the defendants’ freedom of association theory, the First Amendment would also allow all white scholarships,” Do No Harm said in an October filing. “It flies in the face of a mountain of precedent that has accumulated over decades.

Although the Supreme Court accepted the free association argument in Valley, it has dismissed it in numerous other racial discrimination cases—mostly against African Americans—and the courts generally treat racism as a particularly heinous 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 this reasoning 7-2, finding that the belief in segregation was different from its practice.

“If you allow the free speech argument to prevail in the Health Affairs case, you’ll have to let it prevail in the private school case as well,” Bernstein said. “It would undermine the enforcement of all anti-discrimination laws, so no court will buy it.”

Health Affairs declined to comment on the implications of his argument, saying only that he was “confident” of the scholarship’s legality.

Beyond the radical precedent it would create, Health Affairsit is the defense ignores a number of other differences between the Valley case and this one. For example, Bernstein noted, Dale was not just a member of the Boy Scouts, but a leader and role model responsible for instilling moral values, which meant that his open embrace of homosexuality was likely to have an impact on the group message. It is less clear how accepting white men would prevent Health Affairs to convey that diverse academics are “vital to health equity”.

Another difference, Bernstein said, is that the scouts were arguably excluding Dale because of his support for gay conduct — he was the leader of a local gay rights group — not his gay identity as a gay man. such. While Rehnquist’s opinion is somewhat hazy on this distinction, there is no corresponding ambiguity on the Health Affairs scholarship: It excludes all white applicants, regardless of their opinions or conduct.

The Boy Scouts also didn’t take federal funds, meaning they weren’t bound by Title VI of the Civil Rights Act, the law that prohibits racial discrimination in government-funded entities. government. Health Affairshowever, is part of a non-profit organization, Project HOPE, which receives millions in government grants.

“On the merits, the defendants would have this Court declare a federally funded First Amendment right to racial discrimination,” Do No Harm said in its October filing. “This statement would significantly disrupt anti-discrimination efforts since the Reconstruction era.”