It was widely reported over the weekend that the national organization of the Delta Zeta sorority "evicted" 23 members of the DePauw University chapter because they were less attractive than the unpurged members. The national organization denies that appearance was the basis for the purge but the incident drew fire from both within and outside DePauw. A few reactions:
1) To my knowledge, neither Indiana law nor DePauw's internal non-discrimination policy specifically forbids appearance discrimination, although the university may have rules requiring sororities and other student organizations to be open to all students. (Searches of the DePauw website yielded a large number of pages no longer available.) Certainly, federal law doesn't forbid appearance discrimination. The stories (including one in the NY Times) indicate that the purge also targeted minority students, which undoubtedly would violate various prohibitions. For my purposes, however, I'll focus on the legal, if odious, appearance discrimination.
2) When the Supreme Court held in Boy Scouts v. Dale that the Boy Scouts had a First Amendment right of (non)association to exclude members based on their sexual orientation, the majority allowed that an organization could crystallize a discriminatory membership policy in the course of litigation. I wonder whether a truth-in-advertising rule might not be a better way to trade non-discrimination against associative freedom. Under such a rule, you can be the Straight Scouts, but only if you acknowledge it up front. Likewise, Delta Zeta could be the "beautiful sorority" or the "beautiful thin white sorority" but again, only by telling the world that this is who they are. Many people in fact discriminate even if they're unwilling to admit it. Thus, to give two examples: a) white people are more likely to tell pollsters that they plan to vote for black candidates than actually to do so; b) politicians who support blatant discrimination against lesbians and gays (e.g., same-sex marriage bans) will say (when speaking to a national audience) that they personally oppose discrimination. Making people put their discrimination where their mouths are might lead to less discrimination.
3) Policing a truth-in-advertising policy would be tricky because organizations may not realize exactly what their membership criteria are until challenged. Before the first vegan or observant Jew applies to join Delta house, the frat may not have a policy of opposing vegan and observant Jewish members. But once they think about it, they conclude that a vegan or kosher member would be unable to contribute to or enjoy the nightly pig-roast that is the center of frat life. Just how far in advance must the frat decide upon the exclusion? I don't have a perfectly workable answer but perhaps it would be fine to allow ad hoc grounds to emerge for discrimination, but only if the organization fully owns them. Thus, a condition of the Boy Scouts winning their case is, or should have been, that they thereafter advertise their homophobia (or thereafter change the policy in a verifiable way). Likewise, in the Hurley case, the Boston St. Patrick's Day Parade should have been called something like "the all-heterosexual and closeted homosexual Boston St. Patrick's Day Parade."
4) The solution proposed above in 3 (which is not entirely serious but not entirely a joke either) is only necessary where some statute or other source of law provides for a right of access, of course. But with the truth-in-advertising option, it should be easier to enact broad public accommodations and anti-discrimination laws and policies without fear that they will unduly restrict freedom of (non)association.