QUESTION: Hi Joony. I saw this article today and was wondering what it means constitutionally. It seems to me that the private schools referenced in this article can now discriminate against students on ANY basis, including race. Wouldn't that violate federal law? Are they exempt? Please let me know what you think about this.
ANSWER: Hi studenty. Actually, many civil rights laws exempt private clubs and organizations, especially religious ones, from their coverage. Sometimes these exemptions are purely a policy choice. (My recollection is that private schools are, in fact, exempt from many federal civil rights laws, but I'm not certain of this. Certain forms of discrimination, however, can disqualify them from various benefits, such as being declared a charity, donations to which would generate a federal tax deduction.) In some instances, though, these exemptions are constitutionally required by virtue of the First Amendment. The Supreme Court has interpreted the First Amendment as protecting a right of association, and that right includes the right not to be forced by the government to associate with people who would undermine the organization's message. The most famous case on this point is Boy Scouts v. Dale, where the Court invalidated New Jersey's attempt to apply its law prohibiting discrimination on the basis of sexual orientation to the Boy Scouts, who had dismissed a gay scout leader. Not many organizations are exempt statutorily, and fewer still would have a First Amendment claim to be entitled to continue their discrimination. But the short answer to your question is yes, there are several such exemptions in civil rights laws, and many are constitutionally necessary.