The Broader First Amendment Questions Raised by Proposition 54,
the So-Called "Racial Privacy Initiative"

This column is Part Two in a series on California's Proposition 54. - Ed.

Next week, California's recall election will decide not only who will be governor, but also what the fate of Proposition 54, the so-called "Racial Privacy Initiative," will be. If enacted, Proposition 54 would forbid the California government from collecting racial data.

In a previous column, one of us (Professor Amar) considered whether Proposition 54, if enacted, would violate the First Amendment rights of public university professors in the Golden State by interfering with their ability to collect and analyze data that included the racial identity of various research subjects.

In this column, we will continue to discuss Proposition 54 and freedom of expression. In particular, we will use the proposed initiative to highlight some fundamental but as yet unanswered questions about the contours of the First Amendment.

The Broader Free Speech Issue On Which Proposition 54 Touches

The problem created by Proposition 54 regarding academic freedom is, in reality, part of a far broader free speech issue - one that has never been successfully resolved by courts or commentators.

The issue arises because government owns and operates a variety of institutions in our society that serve primarily, and sometimes exclusively, expressive functions. Public schools, universities, libraries, and museums are obvious examples. The administrators of these institutions - school librarians, public museum directors and curators, educational curriculum committees, and the like - routinely make content-based decisions in performing their responsibilities. That is, they make their decisions in part by reference to the content of the media with which they are dealing.

This is hardly surprising. It is plain that there are simply no content-neutral ways to determine what books to place on the library's shelves, what paintings to display on the museum's walls, or what the coverage of a particular class will be.

What remains unclear, however, is the answer to this question: To what extent are these content-driven decisions constrained by the First Amendment and subject to judicial review?

The Dilemma Posed by Expressive Institutions' Content-Based Decisions

Unfortunately, two seemingly persuasive arguments point to two opposite ways to answer this question.

On the one hand, most of us share a common intuition that there would be something terribly wrong and presumptively unconstitutional if, for example, the public library were to be intentionally purged of all books and magazines that communicate anything critical about George W. Bush.

On the other hand, the federal courts cannot reasonably be expected to second-guess the intrinsically value-laden and subjective decisions of every school board, librarian, and museum director in the United States. Doing so would be unreasonably intrusive and a practical impossibility.

One Possible Solution: Focusing on "Legitimate Pedagogical Concerns"

This dilemma seems to invite a compromise solution - and the courts have attempted to reach one. For instance, they have suggested that government discretion in making content-based decisions is permissible as long as the decision made by the governmental administrator is compatible with the function and purpose of the institution in question.

Thus, in the Supreme Court case of Board of Education v. Pico, Justice Brennan's plurality opinion recognized that a school board can require the removal of books from the school library if the removed books are determined to be educationally unsuitable.

And similarly, in another Supreme Court case, Hazelwood School District v. Kuhlmeier - this one involving a high school principal's censorship of the school newspaper - the Court concluded that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities as long as their actions are reasonably related to legitimate pedagogical concerns."

The difficulty with this approach, of course, is that concepts like "educational suitability" and "legitimate pedagogical concerns" depend for their meaning on some agreed-upon understanding of the purpose and function of a public school and its library. But there is nothing in the Constitution that remotely informs a federal judge as to what the purpose and function of a public school or school library might be, much less what they must be.

Another Possibility: Looking to American Traditions and Customs

Meanwhile, there is also another proposed approach to analyzing First Amendment cases involving expressive government institutions. This approach would direct the judge to look to the tradition and customs of American society for an answer.

But there is something unreasonably static and confining about such an approach. Because libraries or schools have served certain purposes in the past, does - or should -- that really prohibit, as a constitutional matter, communities from deciding that these institutions should serve different or narrower functions in the future?

Nor is there even always a consensus as to the current or traditional understanding of an institution's function. That was illustrated poignantly just last term in a plurality opinion in United States v. American Library Association. There, the Court narrowly upheld against First Amendment challenge a federal law that required libraries that receive federal funds to install Internet blockers to prevent children from accessing pornographic materials.

In his plurality opinion in American Library Association, Chief Justice Rehnquist asserted that public libraries "fulfill their traditional role . . . [by] obtaining material of requisite and appropriate quality for educational and informational purposes." In his view, denying adult patrons access to Internet websites containing material that was harmful to minors was fully consistent with that mission.

But the American Library Association, which presumably has at least as much knowledge about the role of libraries as do Supreme Court Justices, perceived the role of public libraries very differently. Thus, we had the anomaly, pointed out by Justice Souter in dissent, that "the plurality's conception of a public library's mission has been rejected by the libraries themselves."

Proposition 54, and the Essential Function of the University

So what does all of this have to do with Proposition 54? Simply this: When Proposition 54 prevents professors at public universities from conducting research that requires the identification of subjects by race, it interferes with the professors' academic freedom. But whether academic freedom at a public university is constitutionally protected against such interference depends on how we conceptualize the purpose and function of universities in the first place.

Thus, Proposition 54 raises the very same dilemma that we confront when government regulates school libraries or high school newspapers. Sadly, it is a question to which there is no easy answer.

If we look to the case law, we see that courts have attempted to identify the key functions of universities in American society. For instance, in Rust v. Sullivan, we are told that the university is itself a free speech forum - a " traditional sphere of free expression."

Moreover, the forum the university provides is so fundamental to the functioning of our society that even the government's simply lessening its funding, or defunding it, is limited to some extent by First Amendment concerns. In other spheres, the government has broad discretion to use the power of the purse to control the expression of the institutions it subsidizes. The constitutionality of such conditions is less clear when they are imposed on universities.

This distinction was suggested in the Rust case. There, the Supreme Court upheld a ban on abortion-related speech for doctors receiving federal funds. But the Court also acknowledged that such government speech strings attached to funding in a university may have different implications.

This rule, however, is in some tension with other legal and political assumptions. To cite one, states are not constitutionally required to fund public universities in the first place. And to cite another, if a state does fund public universities, it can certainly choose to establish colleges that operate primarily as teaching institutions, rather than research universities.

Given these two undisputed premises, if a state does elect to create a research university, does the Constitution prohibit it from restricting the range and nature of research inquires that academics engage in under the university's auspices?

One might argue that the power not to fund universities in general, and not to fund research universities in particular, also implies the power to restrict the research permitted at institutions of higher education the state does elect to fund.

But one might also argue the opposite point: A government's decision to pay for a microscope does not necessary entail the right to constrict what a scientist using the microscope will focus it on.

To put the question most directly, can a state determine that the research university it supports should serve a different function that the traditional one the Court has recognized in its decisions? And, similarly, does the university administration's or faculty's opinion of what purpose universities should serve carry weight - even though public libraries' opinion of their own mission didn't seem to carry much weight in American Library Association?

Another Free Speech Aspect of Proposition 54 - the Anti-Paternalism Principle

Meanwhile, Proposition 54 separately implicates yet another First Amendment value: anti-paternalism. Citizens are to decide for themselves which speech or information is valuable; the government is not to decide for them.

The ballot argument in support of Proposition 54 makes clear that its proponents want to prohibit state and local governments from collecting information and developing data about individuals on the basis of their race or ethnicity because they fear such information may be used inappropriately.

Proposition 54's proponents argue that racial categorizing will lead to several pernicious effects. They contend that maintenance of, and access to, this information is divisive. And they suggest that collection of this data induces people to think of themselves and others unduly in terms of their race and ancestry, and to act accordingly.

Proposition 54's paternalistic solution is not to collect this data in the first place - and thus to prevent all the harms its backers believe might follow from misuse and misinterpretation or racial information. The Supreme Court, however, has not been receptive to this kind of government paternalism as a justification for regulating speech. Instead, it has suggested that keeping people in the dark by denying them access to information, because the government does not trust its own citizens to evaluate and use the information in appropriate ways, is a constitutionally impermissible purpose.

For instance, in a long line of commercial speech cases, the Court has repeatedly refused to accept this kind of government paternalism as a justification for regulating speech. And these holding are all the more notable because commercial speech is "lesser protected" than political speech - such as the speech implicated by Proposition 54.

Many of the "commercial speech" holdings are very strongly anti-paternalistic. In Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., the Court held that a state cannot prohibit stores from advertising the price of prescription drugs in order to prevent consumers from patronizing large drug store chains to the detriment of local pharmacists. The Court acknowledged the possible harm: Exposure to price information may result in changes in buying behavior that adversely impact the public interest. But it still insisted that fear of that harm cannot justify regulations that keep such information from the public eye.

For similar reasons, in Linmark Associates, Inc. v. Township of Willingboro, the Court struck down a local ordinance prohibiting property owners from posting "For Sale" signs in front of their residences. There, the village in question was plagued by "block busting" real estate agents who instigated a selling panic by informing homeowners that African-Americans were moving into the neighborhood. The village justified its commercial speech restriction on the grounds that white residents, already anxious about a potential decline in their property values, might decide to sell their homes precipitously if they saw numerous "For Sale" signs sprouting up in their neighborhood. But again, the Court refused to allow the government's illicit attempt to keep its people in the dark because it did not trust the way they would evaluate and use such information.

Granted, Proposition 54 does not itself directly regulate speech. Instead, it prevents the collection and development of information by government agencies. But the initiative does have free speech implications: Without the data, informed speech cannot occur. And the initiative, like the measures the Court rejected in the commercial speech cases, does reflect a paternalistic mistrust of citizens - the Proposition's proponents' belief that neither the State nor its citizens possess the ability to evaluate and use such information for appropriate purposes.

Thus, whatever the merits of the ultimate goal of this Proposition, its premise reflects the same demeaning lack of respect for the citizenry that has repeatedly irked the Supreme Court.

In practice, courts may or may not look to the commercial speech/paternalism precedents in assessing Proposition 54. But we believe they should, for such analogies are helpful in resolving these vexing and unanswered First Amendment questions.