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.

[Kevin]

Originally Posted by 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.

Do you have a citation? Googling the case name isn't turning anything up.

That sounds like a trade association. I also imagine the sort of discrimination wasn't racial/sexual/gender/national origin/religion, etc.

The offending group in this case wouldn't be in trouble at all except here's one of the rare cases where sexual orientation discrimination can actually be proved.

[Sen's Revenge]

Originally Posted by dekeguy

It is the chapters business and it is private family business.

It would be private family business if they were not chartered on college campuses.

Morgan is a university, which is allowed to have rules governing all of their student organizations. It is also public.

[MysticCat]

Originally Posted by Kevin

Do you have a citation? Googling the case name isn't turning anything up.

Exactly the question I had. The only thing I can find is The Wiki article on Mardi Gras in the US, whch says:

In 1991, the New Orleans city council passed an ordinance that required social organizations, including Mardi Gras Krewes, to certify publicly that they did not discriminate on the basis of race, religion, gender or sexual orientation, in order to obtain parade permits and other public licenses. The ordinance required these and other private social groups to abandon their traditional code of secrecy and identify their members for the city's Human Relations Commission. In protest, the 19th century krewes Comus and Momus stopped parading. Proteus did parade in the 1992 Carnival season, but returned to the parade schedule in 2000. Two federal courts later declared that the ordinance was an unconstitutional infringement on First Amendment rights of free association, and an unwarranted intrusion on the privacy of the groups subject to the ordinance. The Supreme Court refused to hear the city's appeal of their decision. Today, many krewes operate under a business structure – membership is open to anyone who pays dues to have a place on a parade float.

But, no citations to these court cases, and all my googling on the ordinance has failed to turn up any references to lawsuits, though I found lots of news stories about the ordinance and/or its sponsor, Dorothy Mae Taylor. Many of the stories I found suggested the ordinance, or a revisions of it, is still in effect.

Oh, and it does seem to be pretty obvious, not to mention pretty well documented, that some of the krewes were "seen to be discriminating in their membership selection" because they were discriminating in the membership selection.

[dekeguy]

I'll try to dig up the appropriate citations.

The Carnival Krewes were the "secret" organizations within the old guard white private clubs like the Pickwick Club, the Boston Club, Louisiana Club, Bienville Club, etc. They were highly selective with waiting lists of 12 years and longer. They were not commercial organizations and according to my Dad one could not even discuss business at the clubs. They were really 19th Century social clubs like the ones I knew in London. Since they paid for all expenses out of their own pockets I gather they really resented the city trying to force their membership. I have to check on this but I seem to remember that 2 or 3 of the more prominent Black Krewes joined in the suit contesting the city ordinance saying that their membership rules were very stringent and just as old as the 'White' krewes and nobody was going to tell them who they had to admit to membership. Perhaps someone can help me with this but I think it was the Zulu SA&P Club, the Illinois Club, and the Autocrat Club.
Anyway, I'll do some more research.

[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.

[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.

[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?