The Supreme Court Blessed Discrimination. Now That Might Aid DEI

If it’s OK with the US Supreme Court for the Boy Scouts to exclude gay men from its leadership, to be true to its values, why can’t other private organizations be true to their values by deliberately including certain types of people?

That reasoning carried the day in New Jersey in a landmark December decision that turned the tables on the movement to kill diversity, equity, and inclusion programs. The decision—holding that the state bar association could reserve 13 leadership spots for people from specific ethnic or other groups—provides a court-approved defense to nonprofits putting more women on their boards, having groups run by people with disabilities, or mandating that leadership spots be reserved for LGBTQ+ voices.

It all comes back to one of the First Amendment’s extremely undervalued benefits: the right to tell people to get lost.

When it comes to clubs, kicking out the wrong people is just as important as letting in the right people. Regardless of groups’ ideologies, courts have long backed this up and allowed organizations to defenestrate both rabble-rousers and people who just couldn’t read the room.

Rulings have let a gay softball league strike straight guys from teams’ lineups. Student groups got the green light to bar their doors to members who disagree with their mission. Even some religiously-affiliated employers can fire workers who support abortion rights.

Federal and state laws outlaw segregation and discrimination in employment, housing, school admissions, transportation, and government programs. But anti-discrimination laws can’t force private groups to put up with anyone. Even if rules for entry are bigoted, misogynistic, or stupid, that’s free expression protected by the Constitution.

At some point, kicking people out is the same thing as letting specific people in. So when it comes to a club’s leaders, pick whomever you want and exclude the rest. The New Jersey ruling says that’s OK.

Lawsuits attacking DEI policies at state bars have argued discrimination is discrimination is discrimination, and it’s all unlawful. The latest suit was filed Dec. 20, pushing to end West Virginia’s leadership post reserved for a Black lawyer.

The impact of this nationwide litigation, backed mostly by right-leaning and libertarian groups, has limited bar associations’ efforts to right the wrongs of past decades in which minority and women lawyers were overlooked for leadership. Bars from Wisconsin to Florida are rolling back diversity programming or dropping it entirely, leaving minority bar groups without key partnerships for funding, venues, and publicity.

The critique is that a ruling like the one in New Jersey renders anti-discrimination laws meaningless when it comes to private groups.

But look around. We’re there already, and the sky hasn’t fallen.

It’s been 24 years since the Supreme Court ruling in the Boy Scouts case. There are still more than 1 million Scouts—and the group lifted its ban on gay leaders in 2015 of its own accord. No lawsuit needed.

It’s been 35 years since New Jersey started its diversity quotas. Yet, in a state that doesn’t crack the top 10 for US population it has the sixth highest number of lawyers and the state bar has roughly 16,000 members.

Whether it’s the He-Man Woman Haters Club or a stuffy sorority; MAGA or the Weather Underground; the Boy Scouts or the bar: discrimination that’s good for the goose is the discrimination that’s good for the gander.

If people don’t like how the First Amendment lets groups discriminate, they could start their own special club.