What doesn't? The state has the responsibility and authority to regulate higher education within that state. How is it any different than, say, regulating emissions standards?
I can't argue the law, but it seems pretty obvious that the state can regulate this. It's not like universities are purely private clubs free to discriminate anyway they choose.
Well, if the State is providing any financial assistance to the school, the State could try and make the ban a contract term. Otherwise, I can't think how. Discrimination in general is and always has been perfectly legal. The 14th amendment and resulting Civil Rights Acts carve out specific types of discrimination that aren’t permitted but the analysis depends on the grounds for discriminating, the person or entity doing the discriminating, the purpose for discriminating, and the nature of the class being discriminated against. Where discrimination is not specifically forbidden it's pretty much a constitutional right.
For example, public and private discrimination in the provision of public accommodation is generally illegal if it's based on race. It isn't necessarily impossible if the purpose is to redress historic wrongs. Hence affirmative action. Even there, it's dicey.
On the other hand, discriminating on the basis of age is generally, but not always, illegal even in the provision of public accommodation. Think about 55+ housing communities. Every anti-discrimination law infringes on the constitutional right of free association. That's a big deal to me.
ABC News says several groups of students banded together to attack Harvard's legacy admissions policy but their approach is to show that legacy admissions result in race based discrimination. That’s viable if it is in fact true. See what they did, though, by calling for a federal investigation. They are trying to wedge legacy admissions into the purview of prohibited race discrimination. They are doing this because legacy admissions policies are not facially illegal.
And by the way, Doctor Douglas, your claim that you "can't argue the law" sounds pretty fishy to me. I strongly suspect you know far more about this subject than you care to admit just now.
Is this legislation really a ban de jure, or just a heinous set of restrictions on what an institution that doesn't comply will no longer get from the state? That's how a lot of federal regulation works, by tying things to Title IV eligibility.
You often know more about what you don't know than many people know about what they do know. But fair enough.
That's a good question. The State might not be able to condition its contracts or aid on whether the school refrains from exercising a constitutional right. Spending power authority is not unlimited. For an extreme example, suppose a state like, oh, I dunno, say Idaho announced that it won't pay welfare benefits to any otherwise impoverished families if those family members are actively involved in trying to get an abortion rights amendment on the ballot. It's clear, I suppose, that such a restriction would be swiftly shot down by the U.S. District Court. This matter is not as clear as my Idaho hypothetical. Nevertheless, the basic structure of the analysis is the same.
