Is Antidiscrimination Law Content-Neutral?

 My latest Verdict column is titled Advice to Campus Administrators: Don’t Call it an "Expressive Activities Policy," Except to the Extent that Expressive Activities Receive Extra Solicitude. In it, I discuss the "Expressive Activities Policies" adopted by or under consideration at various colleges and universities around the country. I explain that such policies typically read as regulations of expressive activities but that this framing is at best misleading. It suggests that colleges and universities are adopting restrictions on expressive activities in particular. Instead, they should be understood as applying their general rules of conduct to all activities, including those that happen to be expressive.

Thus, a college or university has the same interest in forbidding an impromptu game of ultimate frisbee on its main quad if that poses a danger to safety or access to buildings as it does in forbidding an impromptu march or rally. Permissible content-neutral time, place, and manner (TPM) regulations of expressive activities, I explain, are best understood as regulating expression only incidentally--despite, rather than because, the activities are expressive. As I explain in the column, the confusion about what TPM regulations are can even have harmful consequences in the substantive formulation of the policies.

My column does not address a different rationale for restricting expressive activities that has been much in the news over the last eight or nine months: antidiscrimination law. Members of Congress, individual plaintiffs, investigators with the Department of Education, donors, and others have credibly alleged that at least some campus protests of the Gaza war (and frequently also against universities' failure to divest holdings connected to Israel from their endowment portfolios) have included antisemitic statements and behavior that could create (or contribute to the creation of) a hostile environment for Jewish students in violation of Title VI.

I don't discuss that concern in the column because, on the face of it, Title VI and antidiscriminaton law more generally are not content-neutral in the way that TPM regulations must be to be permissible. Whether statements made at a protest (or anywhere else) are antisemitic, racist, sexist, or otherwise have the potential to contribute to a hostile environment based on a protected characteristic pretty obviously depends on the content of those statements.

Nonetheless, I want to explore the possibility that antidiscrimination law might be deemed content-neutral in a different way that could matter. My cue for the argument I'm exploring is a 1992 opinion by Justice Scalia.

In R.A.V. v. City of St. Paul, the Supreme Court held that St. Paul Minnesota's ordinance proscribing hate-speech was unconstitutionally content-based, even though, as authoritatively construed by the state Supreme Court, it reached only fighting words that constitute hate speech (as defined in the ordinance). The respondent contended that because fighting words are an unprotected category, any subset of fighting words is also unprotected. Not so, said the Court in an opinion by Justice Scalia. If the government singles out a subset of an unprotected category based on content, it infringes free speech (and thus must satisfy strict scrutiny).

Justice White, in a concurrence in the judgment that disagreed with the majority on the protected-subset-of-an-unprotected-category point objected that under the majority's logic Title VII is an unconstitutional infringement of free speech. After all, it doesn't forbid all workplace harassment, only a subset defined by content: harassment based on race, color, religion, sex, or national origin.

Justice Scalia responded as follows:

[S]exually derogatory "fighting words," among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices, [but w]here the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.

In other words, antidiscrimination law, including Titles VI and IX as well as Title VII, forbids discriminatory conduct. Some of that conduct happens to be expressive, but the government is not forbidding antisemitic, racist, and sexist hostile environment harassment because it expresses the message of antisemitism, racism, or sexism; it is doing so because it is one form of harmful discriminatory conduct.

Is that persuasive? In R.A.V., Justice White invoked a number of reasons why he thought the argument doesn't work, but I think there is more to Justice Scalia's proposition than Justice White acknowledged. That's especially true in the Title II (public accommodations) setting.

Suppose a racist coffee shop owner doesn't wish to serve Black patrons. Cases that the majority purported to distinguish and reaffirm in 303 Creative v. Elenis (at pp. 12-13 of the slip opinion) make clear that the coffee shop owner cannot successfully claim that Title II (or a comparable state or local law) targets the content of his expression, even if he says that he is creating a "white aesthetic" or the like. One might object that, whatever the shop owner's claim, a coffee shop is not an "expressive business" within the (so far unclear) meaning of that term as used by 303 Creative. Fair enough, but suppose that the racist coffee shop owner posts a sign in the window stating "No Blacks, Jews, or Dogs Allowed." That is clearly expression, but even so, because--under Justice Scalia's logic in R.A.V.--Title II targets discriminatory conduct, we should have little difficulty saying that application of Title II to forbid the sign's posting is not impermissibly content based. The posting of the sign is a form of discriminatory conduct that only happens to be expressive.

There I would rest were it not for two uncomfortable facts about the Court's post-R.A.V. jurisprudence. First, in 303 Creative itself, the Court suggests that the reason why Title II permissibly applies to racially exclusive restaurants and the like is that the government has a compelling interest in combating discrimination in public accommodations. But government does not need a compelling interest unless the law in question infringes speech in the first place. So it's possible that the racist coffee shop owner does have a prima facie free speech right to post the hypothetical window sign but could nonetheless be forbidden from doing so because Title II serves a compelling interest (and is narrowly tailored).

Second, since R.A.V., the Court has decided a number of cases holding that a general antidiscrimination law will be deemed content-based when it is applied to some discrete expressive sub-category of discriminatory conduct. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc.--which was unanimous--is a prominent example. The fact that the plaintiffs/respondents relied on a general state public accommodations law as the basis for protesting their exclusion from the St. Patrick's Day Parade (unless they didn't identify themselves as gay) was not enough of a basis to reject the defendants/petitioners' First Amendment objection. The Court treated the case no differently from how it would have treated a law that singled out parades as such--i.e., as targeting expression. Holder v. Humanitarian Law Project makes a similar move, as do subsequent cases.

I have previously criticized the Court for treating the application of laws forbidding discriminatory conduct as content-based when they are applied to conduct that happens to be expressive (e.g., here and here). And I remain of the view that Justice Scalia's approach in R.A.V. is, all things considered, more appropriate--at least where there isn't additional evidence that the law barring discriminatory conduct is being applied selectively to expressive conduct for censorious reasons. However, I acknowledge that Hurley and the subsequent cases have by now pretty clearly rejected the Scalia view. Thus, antidiscrimination laws, when applied to expressive conduct, will be treated as content-based.

Nonetheless, that conclusion leaves open a possibility for private colleges and universities confronting antisemitic, racist, or other discriminatory speech by students or others. Such institutions may not say that Title VI requires them to punish or otherwise limit the speech--at least not without first concluding that the application of Title VI under such circumstances satisfies strict scrutiny. But a private college or university could decide to restrict more speech than Title VI requires it to restrict. Because that decision would not be attributable to state action, it would not implicate the First Amendment rights of the students whose antisemitic, racist, or otherwise discriminatory speech were at stake.

Of course, nearly all colleges and universities quite appropriately adopt free speech norms as central to their own core values. Thus, for their own sake, even private colleges and universities should not willy-nilly override the free speech of their students, faculty, or staff. But when a private institution voluntarily adopts free speech norms, it need not adopt every jot and tittle of Supreme Court jurisprudence interpreting the parallel norms of the First Amendment. Accordingly, should those responsible for fashioning campus rules at a private college or university conclude that Justice Scalia's approach in R.A.V. is better than that of Hurley and the other cases that reject the Scalia approach, they should be free to conceptualize their own prohibitions on discriminatory conduct as content-neutral even when applied to conduct that happens to be expressive.