Recognizing Invidious Discrimination

Rule 3.6(A) bars a judge from belonging to "any organization that practices invidious discrimination" on any of seven listed bases, and two words in that phrase tell the judge where to look.¹ Practices points to what the organization does, which is how it chooses its members. Invidious points to discrimination that singles people out for exclusion because of who they are, and the exclusion must fall on one of the bases covered in the last section. The rule's text defines neither word and offers no test. The working method therefore has to come from the words themselves and from the problem they address, a judge's association with a group that excludes.

The question is how the organization selects its members. The current roster is evidence of that selection and is not the answer. A roster results from several forces: who has heard of the group, who wants to join, who applies, and who is admitted. Only the last is the organization's own decision, and only a decision to exclude on a listed basis is a practice of discrimination. A uniform roster can come from open admission and self-selection, and a mixed roster can sit on top of a policy that keeps most applicants of one group out.

Most students count heads. They assume a club of all men discriminates and a club with some women does not. Two clubs show the error in both directions.

The clubs are mirror images. The rowing club's roster suggests a discrimination that is absent, and the business club's roster hides a discrimination that is present. A rule that turned on the roster would clear the judge in the business club because of its token members and could sanction the judge in the rowing club for joining a group open to everyone. Reading the rule to focus on selection practice aims it at the policy of exclusion.

Exam Analysis Steps

Evidence about an organization usually arrives in pieces. The most reliable path runs from the organization's stated policy to its actual conduct, with the roster as one clue among several:

Identify how the organization decides who may join, including its written bylaws, its admission criteria, any nomination or sponsorship requirement, and who makes the final decision.
Compare that stated policy with actual practice, asking whether applicants from a listed group have been turned away, discouraged, or held to harder conditions than other applicants.
Treat the roster as evidence and weigh it with how it came about, since open recruiting and self-selection point to a neutral process, while a quota, a cap, or a handful of token members points to a policy.
Ask whether any exclusion found rests on a listed basis, and conclude that the organization practices invidious discrimination only if it does.

In practice the facts about a group may be incomplete, and a judge who is unsure should learn how the group selects its members before joining and again while remaining a member. On an exam the facts are given, and the second and third steps usually decide the problem, because the stem will describe either a neutral process behind a lopsided roster or an exclusionary device behind a mixed one.

Constitutional freedom-of-association law explains why this line is hard to draw, but it is background only. Antidiscrimination law reaches most naturally into large, unselective clubs and clubs that members use to build business contacts, because those groups look more like public marketplaces than private circles. Small, intimate groups and expressive groups have stronger claims to choose their own members, and the Boy Scouts in Boy Scouts of America v. Dale are the familiar example of an expressive group. That case, together with Roberts v. United States Jaycees on the other side of the line, shows how much the answer depends on size, selectivity, and purpose. Neither sets the standard for judicial conduct. Rule 3.6(A) asks whether the organization practices invidious discrimination on a listed basis, and a group's strong constitutional claim to choose its members does not by itself settle whether a judge may belong to it.

Recognizing Invidious Discrimination

Endnotes2