Probation for Discrimination against Gays

[dekeguy]

I share Tom Earp's concerns regarding government intrusion into privacy issues. I also share the concerns of those who are a bit offended by some of the comments made among the membership in social media exchanges. I am also troubled by the thoughts that state law prohibits this sort of discrimination and that should decide the issue.
Seems to me that this is a freedom of association issue which was decided by the US Supreme Court a few years back in the City of New Orleans v. Certain Carnival Organizations where the court slam dunked the city in its attempt to force open the membership of Carnival Organizations which were seen to be discriminating in their membership selection. The Court ruled that freedom of association was a constitutional issue and its ruling trumped all inferior courts' rulings, state laws, and city ordinances. In short, one has the right to choose who one wants to hang with.
From my point of view if a guy rushes, the chapter likes him, and he is a good fit then what is the problem? Likewise, if he is not liked and is not seen as a good fit then again, what is the problem? Bid him or don't bid him. It is the chapters business and it is private family business.

[Psi U MC Vito]

I just searched on Lexis and couldn't find anything.

[Kevin]

I did a Westlaw(Next) search for U.S. Supreme Court only, 'freedom of association carnival organizations.' Got nothing.

I do have an account with my firm, so if anyone can give me some text which would be found in the opinion, I can probably find it.

[ZetaPhi708]

I feel like I've just walked into: The Paper Chase.

Good hunting, gentlemen.

[MysticCat]

Originally Posted by Kevin

I did a Westlaw(Next) search for U.S. Supreme Court only, 'freedom of association carnival organizations.' Got nothing.

The Wiki reference I found said said SCOTUS denied review, so I'm assuming what needs to be looked for is Fifth Circuit or Eastern District of Louisiana. I'm not having any luck finding anything on Lexis, though, and I've tried a variety of search terms. If it's there, it's buried so deep I'm not getting to it.

[Psi U MC Vito]

Originally Posted by MysticCat

The Wiki reference I found said said SCOTUS denied review, so I'm assuming what needs to be looked for is Fifth Circuit or Eastern District of Louisiana. I'm not having any luck finding anything on Lexis, though, and I've tried a variety of search terms. If it's there, it's buried so deep I'm not getting to it.

Since it seemed to be a local ordinance, is it possible it was Supreme Court of Louisiana?

[Kevin]

I think I found a more on-point case anyhow: Boy Scouts of America v. James Dale, 120 S.Ct. 2446 (2000). It held:

The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints. New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 13, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988). But the freedom of expressive association, like many freedoms, is not absolute. We have held that the freedom could be overridden “by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts, supra, at 623, 104 S.Ct. 3244.

So that doesn't really answer the question as to whether Maryland's student code of conduct can do what it's being used to do, though I think if you asked Kappa Alpha Psi's HQ (and here I am just speculating) that they'd probably not think that the forced inclusion of this individual would necessarily impair their ability to advocate public or private viewpoints, except those viewpoints which were discussed in the OP, which I'm guessing Kappa Alpha Psi's HQ would definitely not endorse.

At any rate, there is no forced inclusion happening here. The organization is placed on probation, not even double-secret probation. I doubt they'll be dumb enough to talk about sexual orientation discrimination via social media again.

[MysticCat]

Originally Posted by Kevin

I think I found a more on-point case anyhow: Boy Scouts of America v. James Dale, 120 S.Ct. 2446 (2000). It held:



So that doesn't really answer the question as to whether Maryland's student code of conduct can do what it's being used to do, though I think if you asked Kappa Alpha Psi's HQ (and here I am just speculating) that they'd probably not think that the forced inclusion of this individual would necessarily impair their ability to advocate public or private viewpoints, except those viewpoints which were discussed in the OP, which I'm guessing Kappa Alpha Psi's HQ would definitely not endorse.

At any rate, there is no forced inclusion happening here. The organization is placed on probation, not even double-secret probation. I doubt they'll be dumb enough to talk about sexual orientation discrimination via social media again.

There are two issues at play here, and in the case that dukeguy seems to be talking about. The first is whether the government can tell a private association how it must select members. That's the question Dale addresses, and it says "no, the government can't."

The second question is whether the government can choose treat organizations that discriminate differently from those that don't—whether in the context of a school denying or limiting recognition or in the context of a city denying the organization permission to participate in a parade. The answer to that second question is murky for me.

In other words, an organization has the right to choose its members and set its criteria for membership. But does it also have a right to expect public accommodation if those criteria are contrary to public policy?

[Kevin]

Originally Posted by MysticCat

In other words, an organization has the right to choose its members and set its criteria for membership. But does it also have a right to expect public accommodation if those criteria are contrary to public policy?

A threshold question would be whether the HQ of Kappa Alpha Psi backs the discriminatory activities of the chapter. In other words, the route to proper redress doesn't necessarily have to be through the courts--if the national body reprimands its chapter, that pretty much tells us what we need to know.

[als463]

I read the article, which seemed pretty short. Maybe I'm missing something here. He cited a gay slur through social media. I'm guessing someone used a nasty term about the guy but, can we all be 100% certain that his sexuality was the entire reason he was dismissed? I'm an LGBTQI advocate but, I also recognize that there may be times, as someone mentioned earlier, when someone just does not mesh well with the members. Why does it automatically have to be because he was gay?

[Sen's Revenge]

Originally Posted by als463

can we all be 100% certain that his sexuality was the entire reason he was dismissed?

WE don't have to be 100 percent certain. The university is.

[DeltaBetaBaby]

Originally Posted by als463

I'm guessing someone used a nasty term about the guy but, can we all be 100% certain that his sexuality was the entire reason he was dismissed?

It doesn't have to be the entire reason. If it was considered at all, it is discrimination, and that violates the university's policy. This is no different from a potential employer saying to a colleague "I think als463 was a great candidate, but she just got married. I wonder if she's planning to get pregnant soon."

[DubaiSis]

I think (and I am no lawyer here) that the rules generally state you can be as selective as you want in a private scenario and not receiving any public funds. Which means, in my interpretation that public schools get public funding so any Greek systems have to play along. Or on the other end, there are golf courses who won't host PGA tournaments because they choose to be able to select their membership however they want. That's not due to public funding but is a mandate of that association. So any Greek letter organization can have whatever restrictions they want, but only at schools that will allow said restrictions. Why they would want to is another argument altogether.

[Tom Earp]

Maybe we all are forgeting one thing, THE PERSON!

Maybe he did not fit in period gay or straght?

Could this whole thing be just a ploy?

[Kevin]

Originally Posted by Tom Earp

Maybe we all are forgeting one thing, THE PERSON!

Maybe he did not fit in period gay or straght?

Could this whole thing be just a ploy?

Tom, there was social media evidence indicating that his sexuality was a reason (maybe THE reason) he was excluded. That's problematic because it says they didn't look at the whole person.