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Shawn M. Larsen
Excerpted from: Shawn M. Larsen, For Blacks Only: the Associational Freedoms of Private Minority Clubs, 49 Case Western Reserve Law Review 359-405, 393-405 (Winter, 1999)
A. An Organization's Right of Expressive Association
As previously discussed, the policy driving states to enact PAAs was the elimination of discrimination against historically disadvantaged groups. In fact, such laws "provided the primary means for protecting the civil rights of historically disadvantaged groups until the Federal Government reentered the field" with the passage of the Civil Rights Act, a comprehensive body of law intended to sound the death knell for the nation's Jim Crow era of racial segregation. Today, these PAAs continue to play an essential role in filling the gaps left in federal anti-discrimination legislation. Given this background, it is not surprising that the overwhelming majority of lawsuits brought to enforce such laws have been brought by minority groups attempting to force open the doors of discriminatory organizations. Judicial decisions in these cases have been premised on the understanding that PAAs are instruments with which to protect African-Americans and other minorities from racial discrimination.
No matter how clear their legislative intent may seem upon investigation, the majority of state PAAs still are race-neutral on their face, prohibiting all discrimination based on race. Until the last few decades, this was an acceptable approach because the vast majority of racially exclusive clubs were owned and/or operated by whites, making a court's duty to distinguish the "discriminated" from the "discriminator" an easy one. In the decades since the end of governmentally sanctioned racial discrimination, however, the nation has seen a proliferation of associations organized to serve the communal and cultural interests of African-Americans. In order to maintain their cultural identities, many of these groups, such as the UAM, have instituted policies that exclude whites from obtaining full membership. In such situations, the historical mirror has become inverted, pitting African- Americans in the role of discriminating against whites solely because of their race. If the current tenor of race relations in America is any indication, the future of racial discrimination litigation holds an onslaught of claim brought by whites against such racially discriminatory black organizations. Unfortunately, Southgate's claim is a harbinger of things to come.
Any claim brought under a state's PAA seeking to protect the rights of whites against the discriminatory policies of African-American clubs will be evaluated under the Roberts framework. Neither Roberts nor its progeny suggest that a different approach must be used when dealing with "reverse discrimination." At first blush, such a race-neutral standard would seem to dictate that the right of expressive association held by all-black groups is no "stronger or weaker than the parallel claim of [white] clubs." Under this view, the strength of the right to discriminate proclaimed by the UAM is equal to that of the KKK, the race of the excluded being irrelevant.
The key to differentiating the effects of governmental action on all- white and all-black groups is the extent to which forced integration would impair the group's message. In accordance with the Roberts framework, governmental bodies acting in the name of eliminating discrimination will be deemed to have acted unconstitutionally only if they "seek to impose penalties or withhold benefits from individuals because of their membership, ... attempt to require disclosure of the fact of membership in a group seeking anonymity, [[[or] ... try to interfere with the internal organization or affairs of the group." Such infringements would violate a group's associational freedom because admission of unwanted individuals runs the risk of impairing the ability of the group's original members "to express only those views that brought them together."
In general, contemporary African-American organizations are established around the premise of protecting the rights of African-Americans against the racially biased actions of the white majority.
In essence, these groups are borne of rebellion against such racially discriminatory practices, i.e., their founding principles are necessarily race- specific. To be exclusionary is not a capricious choice on the part of these organizations; rather, it is a reflection of their very nature. For example, the UAM was established as a "'sanctuary' from racism where people of African descent can convene 'without any input from persons who harbor racial animus toward Africans."' The UAM's "'absolute refusal to allow Caucasians"' in to its meetings is an extension of its overarching purpose, and a means by which the group is able to maintain its racial identity. Forcing the UAM and similar groups to admit members of the race it was established to provide protection against would be the ultimate distortion of the group's message. All-white groups, on the other hand, do not, as a general matter, share this essential racial nature. To argue, for example, that an exclusionary golf course is somehow a reflection of the nature of whites is far from convincing. Their racially exclusive policies, then, do not spring from their "racial nature" but rather their historic desire to keep out social undesirables. These organizations, rather than acting as safe havens against bias, are in reality a modern-day reflection of the sort of racially discriminatory society federal and state legislation has sought to eliminate. As such, forced integration would be of much greater harm to an all-black club than to an all-white club; the all-black club would be forced to turn its back on its founding principles, while the all-white club would merely be inconvenienced. Accordingly, the associational freedoms claimed by all-white clubs should necessarily be more narrowly construed than those allowed to all- black associations.
B. The Government's Anti-Discrimination Interest
A court's finding that the application of a PAA's anti-discrimination regulations would wreak an unconstitutional infringement upon an all-black organization does not resolve the issue under Roberts. One must analyze the other side of the balancing test, that is, the state's interest in eliminating discrimination. In this regard, the difficult question that courts will likely confront with increasing frequency in the coming years is whether a governmental interest in favor of eliminating discrimination against whites is of such a "compelling" nature as to justify significant infringement on the associational freedoms of exclusively black organizations. To analyze this question, it is necessary to focus on the two main rationales upon which protection from racial discrimination has been sanctioned: providing equal access and preventing stigma. By applying these justifications to both whites and blacks, it becomes clear that any interest against discrimination is of a much less "compelling" nature when used to justify infringement on an all-black association.
1. Equal Access
The "strongest state interest for regulating the associational choices of private clubs is assuring that excluded group members enjoy equal opportunity to tangible economic goods and services, including access to the commercial world of clients and contacts." A "compelling state interest of the highest order," the ideal of equal access to business contacts and training, grows out of the broader governmental interest in assuring unrestricted access to opportunities open to other segments of society. A basic tenet of civil rights jurisprudence, that of providing equal access to the advantages and opportunities offered in public accommodations, has been employed by the Supreme Court mainly to prohibit discrimination against historically disadvantaged groups (especially African-Americans) in public arenas such as housing and education. In fact, the whole history of race discrimination cases amounts to "a one-way model of desired access--blacks seeking the status and privilege accorded to whites ...." According to Laurence Tribe, this "one-way" jurisprudence has developed because "blacks [have] wished access to the dignity and power that went with roles which were the exclusive province of whites...." To put a finer point on it, he adds "there were never any roles dominated by blacks to which whites wished access--because the only role ever exclusively occupied or even dominated by blacks was that of slave." The broad language employed by states in drafting their PAAs reflects the expansive scope of this interest. However, the broad range of protection guaranteed by these laws should not blur the original intention of these acts: the protection of society's minority groups. The Roberts Court made this point very clear, stating:
This expansive definition [of Minnesota's public accommodations law] reflects a recognition of the changing nature of the American economy and of the importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women.
When applied to private clubs, however, the argument in favor of equal access must be modified because such clubs, by their very nature, do not offer services to the general public. In the Roberts trilogy, the Supreme Court recognized that such private organizations, while not offering "public opportunities," do, however, offer special business skills and advantages that would be otherwise unavailable to the excluded group. The Roberts Court affirmed the lower court ruling that the "various commercial programs and benefits offered to [Jaycees] members" placed the group within the jurisdiction of Minnesota's public accommodations law because "'[l]eadership skills are "goods," [and] business contacts and employment promotions are "privileges" and "advantages" ...."' In accordance with this expansion of the equal access rationale, the Court went on to hold that "[a] ssuring women equal access to such goods, privileges, and advantages clearly furthers compelling state interests." The application of a governmental interest in favor of equal access to business contacts (or "goods") provided by private organizations has become entrenched in the jurisprudence of associational freedoms.
At least one recent Supreme Court decision dealing with a disputed affirmative action program threatens to open up the door to claims brought by whites who have been excluded from a group (or from opportunities) solely because of their race. Such lawsuits have added a new dimension to the traditional Roberts analysis. In Adarand Constructors, Inc. v. Pena, the Court reviewed a federal affirmative action program designed to provide highway construction contracts to disadvantaged business enterprises, contracts presumptively awarded on the basis of race. In attempting to give shape to the numerous holdings dealing with race-based affirmative action programs, the Court set forth "three general propositions with respect to governmental racial classifications." According to the Court, these three guidelines are:
First, skepticism: "Any preference based on racial or ethnic criteria must necessarily receive a most searching examination." Second, consistency: "The standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification," i.e., all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized. And third, congruence: "Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment."
While the constitutionality of affirmative action programs obviously implicates constitutional questions beyond those dealt with in an associational freedom analysis, the adoption of Adarand's "consistency" principle could result in a correlative expansion of the "equal access" interest in the favor of whites. Under the Adarand approach, "any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny." In this view, exclusion alone justifies the invocation of the "equal access" principle, with the race of the excluded party playing no role in determining the "compelling" nature of that interest. Courts throughout the country have seized upon this ruling as the basis for overturning affirmative action programs that foster the inclusion of African-Americans and other minorities at the expense of whites. Broad application of this principle to the Roberts framework would expand the governmental interest justifying infringement on private groups on grounds of equal access to "any individual ... [who] is disadvantaged ... because of his or her race," thus posing a serious threat to the constitutional protection presently enjoyed by minority clubs.
Justifying the inclusion of whites in all-black clubs on the basis of assuring equal access to goods and opportunities available only to club members rings hollow for two reasons. First, minority clubs generally will have a "less ample supply of goods and services and a lower level of power and influence to offer" whites. While this characterization may not be universally true, the cases upon which the equal access principle was established demonstrate that private groups in which minorities have fought to be included constitute highly organized social and fraternal networks of people who, in accordance with their historic status in society's majority, have become privy to the type of business opportunities that excluded groups justifiably envy. In contrast, African-American clubs which have sought constitutional sanction for their discriminatory policies do not, as of yet, offer such opportunities as would be enviable to whites. This is a function of the long-standing role blacks have been forced to play as societal "undesirables," discouraged from forming such clubs until recent years, and denied the opportunities to build social and economic connections themselves. This simple social reality is ignored by commentators who argue that it is society in general that is harmed by discrimination and who conclude, therefore, that equal access goals are equally as valid whether employed by the majority or minority race. However unfortunate, the fact remains that the business contacts that would be made available to whites were they included in an exclusively black organization are not so compelling as to justify such a substantial infringement on that group's First Amendment rights.
Secondly, under the Roberts framework, governmental infringements on a group's expressive association must be in pursuance of interests which can not be achieved through "means significantly less restrictive of associational freedoms." Assuming that a court finds such "compelling" contacts in an all-black club, the social advantage whites enjoy as the majority race in society would facilitate their ability to make those contacts through alternative means. On the other end of the scale, African-Americans seeking access to the vast network of business and social contacts established by white clubs over the course of decades, or even centuries, will have a comparably more difficult road to hoe. Under the "balancing test" analysis prescribed by the Roberts trilogy, this difference seems to tip the scale heavily in favor of all-black organizations resisting judicially mandated integration.
A second basis for states' compelling interest in eradicating discrimination is the prevention of "stigma." Exclusion from private clubs on the basis of race has the effect of perpetuating and lending societal legitimacy to the stereotypes and perceptions of inferiority upon which such discriminatory policies are based. The governmental interest in preventing race- based stigma was originally intended to benefit African-Americans who suffered the indignities of segregation. The compelling nature of this original judicial intent was made clear in Brown v. Board of Education, wherein the Supreme Court overruled the "separate but equal" doctrine in public schools. The Brown Court reasoned that the racial segregation of African- American schoolchildren "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." While the Court offered many rationales for its decision, the prevention of stigma was not only "[t]he most obvious," but also "the most persuasive." In the decades since Brown, this protection of African-Americans against social perceptions of inferiority has become established as a pillar of the Supreme Court's civil rights jurisprudence.
The debate over the legitimacy of this rationale, however, is the subject of controversy among scholars. On one side, some commentators wholeheartedly embrace the Brown Court's rationale of protection against social stigma. Laurence Tribe, for example, has written that "[r]acial separation by force of law conveys strong social stigma and perpetuates both the stereotypes of racial inferiority and the circumstances on which such stereotypes feed." According to Tribe, the Brown Court, having recognized the detrimental impact of such stigma, justified its holding "less in apartheid's mutual separation of the races than in its allowing one race to enjoy full communal life in society, while effectively ostracizing members of another race." Opponents of this view, such as Ronald Dworkin, argue that "it is not true ... that any social policy is unjust if those whom it puts at a disadvantage feel insulted." According to Dworkin, "[i]f segregation does improve the general welfare, even when the disadvantage to blacks is fully taken into account, and if other reason can be found why segregation is nevertheless unjustified, then the insult blacks feel, while understandable, must be based on misperception."
The more pressing question which courts will confront, as demonstrated in Southgate's claim against the UAM, is whether the exclusion of whites from all-black clubs brands whites with an analogous stigma, thus warranting their compelled inclusion in spite of the substantial impact it may have on the group's associational freedoms. The Supreme Court, however, has not yet had the opportunity to directly confront the issue of the constitutionality of applying public accommodations laws to black-only groups on grounds of stigma. At disparate times, however, the Court has given indications it may be unwilling to allow such a justification. In Regents of the University of California v. Bakke, Justice Brennan, in favor of upholding a medical school's set-aside program for the benefit of racial minorities, argued that excluding whites, "[u]nlike discrimination against racial minorities ... does not inflict a pervasive injury upon individual whites in the sense that wherever they go or whatever they do there is significant likelihood that they will be treated as second-class citizens because of their color."
The recent guidelines for interpreting affirmative action programs laid down in Adarand, however, seem to send a clear signal that the current Court is at least willing to entertain arguments in favor of integrating all-black clubs on grounds that exclusion stigmatizes whites. If, under the principles of "skepticism" and "consistency," racial exclusions are to be viewed through one analysis, regardless of the race of the party discriminated against, then the next logical step in an associational freedom analysis would be that the effects of the stigma must also be viewed independent of race. At least one court has applied the Adarand principles as dictating the recognition of a state's interest in preventing harm to any individual's personal dignity as "compelling." The court in South Boston Allied War Veterans Council v. City of Boston analyzed the constitutionality of a city's predicating the issuance of a parade permit to a veterans organization on its adherence to a non-discrimination law. Despite its holding that forcing the veterans to include a homosexual group in its parade would be an unconstitutional infringement of the veterans' associational rights, the court still entertained the homosexual group's argument that such inclusion was justified to prevent the "stigma" which would result from exclusion. The South Boston court stated:
Neither the Supreme Court, nor any other court, however, has addressed the issue of whether there is a compelling state interest in preventing discrimination which deprives a person of his or her individual dignity, but not of any publicly available goods, services, or opportunities for commercial or professional advancement .... This court assumes, however, that preventing the injury to individual dignity, or stigma, caused by exclusion from an organization or activity is a compelling state interest for the purpose of invoking the Roberts test.
The problem with allowing whites to trample the First Amendment rights of minority groups in the name of preventing stigma is the same as that created by allowing such integration on equal access grounds: it ignores the social reality of African-Americans' status as a historically disadvantaged minority. In the words of Deborah Rhode:
Separatism imposed by empowered groups carries different symbolic and practical significance than separatism chosen by subordinate groups. Given this nation's historic traditions and cultural understandings, the exclusion of men from women's liberation groups or garden clubs no more conveys inferiority than the exclusion of whites from black associations or Protestants from Jewish social organizations. Nor does such exclusivity serve to perpetuate existing disparities in political and economic power.
Allowing whites to utilize a "stigma" argument to force the integration of all-black clubs turns a blind eye to the fact that whites are firmly entrenched as society's overwhelming majority. As such, whites enjoy a social and economic advantage over African-Americans. Racially discriminatory policies upheld by all-white clubs are manifestations of this position of power. The exclusion of minorities from white private clubs carries an "implicit message of ... unworthiness" which reaffirms society's inclination to perceive minority groups as constituting an inferior class of persons. In turn, these policies encourage stereotyping and lead to further stigmatization of African-Americans. On the other hand, their respective positions in society dictate that the exclusion of whites from all-black groups is unlikely to stigmatize whites with similar perceptions of inferiority. The exclusion of whites from minority clubs "is likely to ... carry none of the stigmatizing insult" that has justified the enforcement of anti-discrimination laws in favor of African-Americans. Furthermore, the fact that minority groups are centered around a single shared racial or cultural identity diminishes the weight of arguments that exclusion from such a group will attach any stigma because the "exclusion is more likely to be perceived as an attempt to promote its own identity rather than as a characterization of the excluded group as an inferior class." The discriminatory policies enforced by African-American organizations constitute a means by which African- Americans alone seek to avoid the pervasive societal perceptions of inferiority, rather than mount a counterattack against whites. Allowing a segment of society to band together in protection of its heritage to the exclusion of others does not produce any of the stigmatization that anti- discrimination laws are intended to remedy. To equate the "stigma" claimed by excluded whites with the pervasive stigmatization and inferiority African-Americans have suffered since the birth of this nation is to equate one group's hurt feelings with the other's broken neck.
Under the framework provided by the Supreme Court in the Roberts trilogy, the First Amendment provides a constitutional shield of protection for the expressive association of a private club against governmental infringement. This protection, however, is subject to the compelling governmental interest in eliminating discrimination. Social realities dictate that the nature of this interest becomes strikingly less compelling when applied to force the inclusion of whites in all-black clubs than when employed to integrate all-white clubs.
Many commentators, including Southgate, decry such policies as no more than reverse discrimination. These naysayers, however, miss the point. The racially discriminatory policies employed by African-American clubs such as the United African Movement represent a means by which African- Americans seek not only to protect themselves from racial prejudice and bias, but rather to make heard the voice of the African-American community. As such, they represent a valid exercise of an organization's freedom of expressive association, a fundamental right guaranteed by the First Amendment.
In the words of Justice William O. Douglas: "The associational rights which our system honors permit all white, all black, all brown, and all yellow clubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be.