William & Mary Bill of Rights Journal


The reaction to Boy Scouts of America v. Dale has divided along ideological lines. Conservatives generally support Dale because in their eyes it prevents the government from taking sides in the culture wars. "Progressives, "including many liberals who otherwise have strong civil libertarian instincts, oppose Dale because it inhibits the enforcement of antidiscrimination laws in some contexts. The underlying issue in Dale was whether a private, nonprofit expressive association has a First Amendment right to discriminate to prevent dilution of its message. Despite the ideological rancor over Dale, this right does not favor groups with any particular perspective, but protects any group when its right to expressive association is threatened by an antidiscrimination law. Indeed, despite general liberal opposition to Dale, the opinion may protect some of the left's favorite causes.

Dale recognizes that private, nonprofit expressive associations have a First Amendment right to discriminate when necessary to prevent dilution of their message. For example, to the chagrin of civil rights activists, both white and black racist and racialist groups will have a right to exclude members of other races from membership and events sponsored by the groups. However, Professor Bernstein asserts that the most significant nonprofit organizations with an ideological commitment to discrimination are not racist organizations, but elite private universities that engage in racial preferences in favor of minority applicants. Private universities faced with reverse discrimination lawsuits may find constitutional respite in the right to expressive association if they are willing to admit that they engage in racial preferences.

More generally, Dale stands for a robust right of expressive association. One way organizations protect their ability to express a particular message is by banning their opponents from speaking in their organizations. California's Leonard Law makes university speech codes illegal, and several state constitutions arguably do the same. Professor Bernstein concludes that private university speech codes--a cause typically favored by elements on the political left-are protected against hostile regulations by the expressive association right recognized in Dale.