Wednesday, February 15, 2006

Should the Student Senate allow groups to discriminate?

Below is the text of the message delivered by Mary Kelly on behalf of the ACS at today's Town Hall meeting regarding the proposed amendment to the Student Senate's bylaws:
My name is Mary Kelly Persyn. I am a second-year student and I represent the Columbia chapter of the American Constitution Society. ACS is a nationwide network of students, lawyers, scholars, and judges committed to restoring the fundamental principles of human dignity, individual rights and liberties, genuine equality, and access to justice to their rightful, central place in American law.

As an organization that places the fundamental worth and dignity of every human being at its center, ACS strongly supports Section 5’s nondiscrimination policy. But ACS cannot support, and in fact firmly opposes, Subsection (B)(5)(a), which is part of the proposed amendments to Section Six of the student senate’s constitution.

We note first that constitutional jurisprudence is not precisely clear on this point, and that we oppose the policy on constitutional principle.

The argument that a law student organization would find it necessary to exclude persons from its leadership in order to express an idea is disturbing enough. But the purpose of this amendment is to allow a student group to exclude from its leadership persons who are gay, lesbian, or bisexual, not because of the ideas that these persons express, but because of who they fundamentally are. The student group whose constitution spurred this amendment finds it necessary to exclude gay people from its leadership in order to express its moral disapproval of them—in order to discriminate against them on the basis of sexual orientation. Would the Senate approve such an exception for an organization that found it necessary to exclude white people from its leadership? An organization that wanted to exclude from its leadership women or African Americans? All of these exclusions could be made to rest on some expressive purpose. I cannot think we would be willing to accept them, and yet the proposed language would seem to leave the Senate no choice.

We understand that current Equal Protection jurisprudence does not yet appear to extend its full protection to gay, lesbian, and bisexual persons. We understand that in the open domain, the right of expressive association might protect the right of an organization to discriminate against LGBT persons. But the American Constitution Society holds that within the domain of higher education, the protections of the Fourteenth Amendment must extend further than they otherwise might. In weighing the First Amendment against the Fourteenth Amendment, we find that here, within the university, a contention that the right of expressive association allows exclusion of a group of people because of their sexual orientation can never defeat the aspirational claim of gay persons to the protections of the Fourteenth Amendment nor to the respect and dignity that they, like all people, deserve. Please take this opportunity to reject Subsection B(5)(a) and to insist that discrimination has no place here. Thank you.



At 11:54 PM, Anonymous Adam N. said...

Hear, hear! And the whole idea of somehow limiting the scope of the permissible discrimination by allowing it only in the leadership context is such a joke. Would anybody consider an employer non-discriminatory if it had a policy that anybody can work in its factories but only people of the "correct" gender/race/sexuality/etc could rise to managerial positions?


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