Ted Cruz Could Use a Refresher Class on the First Amendment

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Last edited Wed Apr 17, 2019, 01:43 PM - Edit history (1)

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Cass Sunstein explains to Ted Cruz that the First Amendment does not apply to private universities... "It is not too much to expect the chairman of the subcommittee on the Constitution to understand the reach of the Constitution..."

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Bloomberg Opinion
Politics & Policy
Ted Cruz Could Use a Refresher Class on the First Amendment
The senator opposes a new policy at Yale Law School. But he can’t do it on constitutional grounds.

By Cass R. Sunstein
April 16, 2019, 9:00 AM EDT

Has Yale Law School violated the U.S. Constitution? Has it offended the First Amendment? ... To respond to those questions, you don’t even need to know what Yale is accused of doing. The answers are No and No. ... Yet, in a highly publicized letter to Dean Heather Gerken, Republican Senator Ted Cruz of Texas accused the law school of adopting a new policy that discriminates against Christian organizations on the basis of religion – and is therefore unconstitutional.

Cruz means business. He announced that the Senate Judiciary Committee’s subcommittee on the Constitution, which he chairs, is initiating a formal investigation, and warned that as a result of the inquiry, the case might be referred to the Justice Department. He directed Gerken to preserve and maintain all relevant records, with a view toward the investigation and future litigation.

“The First Amendment protects both free speech and the Free Exercise of religion,” Cruz wrote, explicitly invoking the nation’s founding document. “Yale’s new policy does neither. Instead, it appears that the policy rose from unconstitutional animus and a specific discriminatory intent . . .”

The evident goal of the school’s new policy is to ensure that Yale does not fund students working for public-interest organizations that discriminate on the basis of race, religion, sex or sexual orientation. In Gerken’s words, Yale will not “subsidize employers that discriminate against our own students.” ... Cruz’s concern is that some religious organizations discriminate on the basis of sexual orientation. In his view, it is discriminatory to discriminate against them for that reason.

He’s certainly entitled to object to the new policy. The problem with his letter is that the Constitution and its Bill of Rights apply only to public officials – not to the private sector, and not to private universities at all.
....

It is not too much to expect the chairman of the subcommittee on the Constitution to understand the reach of the Constitution – and to avoid elementary legal mistakes in the context of a threatening letter, written on stationery headed with the still-majestic words, “United States Senate.”

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Cass R. Sunstein at [e-mail]

To contact the editor responsible for this story:
Katy Roberts at [e-mail]