Today, Do No Harm, Students for Fair Admissions, and the American Alliance for Equal Rights filed an amicus brief in the United States Supreme Court in support of a lawsuit challenging the New Jersey State Bar Association’s discriminatory set asides. The case raises an important issue: whether the First Amendment creates a general right to racially discriminate.
The brief urges the Court to grant certiorari in Saadeh v. New Jersey State Bar Association, a case concerning the New Jersey State Bar Association’s racial preference system employed when filling board seats. The bar association, claiming that such preferences are necessary for it to advocate its DEI goals, reserves these seats for lawyers who are “diverse” or from “underrepresented” groups, including, “Black/African American,” “Hispanic/Latino/a/x,” “Asian/Pacific American,” “LGBTQ+,” and “women.”
In October 2021, Rajeh Saadeh, the plaintiff and petitioner in the case, sued the bar association over this quota system, arguing that it violates New Jersey’s antidiscrimination laws.
Though the trial court ruled that the bar association’s quotas were illegal under state law, New Jersey’s appellate court reversed that decision based solely on the First Amendment. According to the state appellate court, forcing the bar association to end such racial preferences would violate the association’s First Amendment rights because it would “significantly burden the expression of its views”—namely the bar association’s “ability to advocate the value of diversity and inclusivity.”
In other words, the court accepted the theory that New Jersey’s bar association had a First Amendment right to racially discriminate. The New Jersey Supreme Court then denied Saadeh’s petition for certiorari.
Do No Harm’s brief explains why this theory is bogus and why it is imperative for the United States Supreme Court to take up this case.
First, the brief highlights numerous examples of cases, including Do No Harm cases, in which defendants accused of illegal racial discrimination have attempted to mount a constitutional Free Speech defense, demonstrating a growing need for the Court to make clear that there is no First Amendment right to racially discriminate.
Then, the brief explains why the logic of a purported First Amendment right to racially discriminate falls apart. Essentially, there is a difference between expressing beliefs and practicing them. The First Amendment protects expression; but antidiscrimination laws forbid racial exclusion and discriminatory practices.
As the brief further explains: “The Free Speech Clause theory” recognized by the New Jersey appellate court and advanced in rising numbers of cases across the country is “not merely novel” but “also incompatible with decades of [Supreme] Court[] precedent and the decisions of most other courts.” In addition, the theory has “no logical stopping point” given that “every entity that discriminates could claim the same ‘expressive’ interest in the bare act of discrimination.”
“The ‘expression’ supposedly found in DEI programs—at bottom, the economic or social advancement of certain racial groups and the exclusion of others—merely restates the fact of race discrimination. Allowing that ‘expression’ to serve as the basis for evading antidiscrimination laws would nullify those laws, for every entity that discriminates could claim the same interest in conveying support for such discrimination.”
Do No Harm urges the Court to grant certiorari.
As defendants scramble to keep unlawful DEI policies in play, many now regularly seek to evade racial nondiscrimination laws and Supreme Court precedent through a purported First Amendment right to discriminate as their “expression.” It is imperative that the Court firmly decide the obvious: DEI activists cannot rely on the First Amendment to racially discriminate.
