Freedom of complex associations

The Tennessee legislature is renewing its attempt to override Vanderbilt's freedom of association in the name of the freedom of association of religious student clubs.  Disappointingly, the Foundation for Individual Rights in Education seems to have forgotten its traditional commitment to universities' own freedom of association, and seems to endorse the selective withholding of state benefits (so selective as to creep into bill of attainder territory!) in order to force Vanderbilt to change its policy... a policy of withholding benefits from student clubs that don't admit all comers, in order to get them to change their policies.

Hither and Yon: Toronto

Today: "Freedom of Complex Associations," University of Toronto Ethics Centre.

Freedom of, or in, universities watch

Whither Goes Free Speech at Harvard?

Ivy League Cracks Down as Students Spiral Out of Control

Note the different framings, even though there are speech cases mixed in with the other examples in the second article.

It's not the case that residential colleges and universities face a choice between in loco parentis and internal rulelessness, standardlessness, normlessness.  Universities are associations; associations normally have the right to set domestic rules of conduct.  There are standards of liberty within universities that are different from, and more demanding than, the standards that govern the civil state: "academic freedom" is not the same as constitutional freedom of speech.  But associational freedom means that universities-- like churches, like the Boy Scouts-- have the authority to set rules of membership, and that the norms of constitutional law are not only legally but conceptually somewhat out of place in evaluating them.

And associational freedom is part of freedom.  Those choosing which residential college or university to attend are free to choose one whose domestic rules suit their tastes, values, and norms, from Brigham Young to Notre Dame to Reed.  Internal norms of behavior are an important part of how one collegiate experience differs from another; and it's no violation of liberty to offer the choice of a college life that expects civility and decency in recreational speech, or that limits or prohibits Greek life.

I would also note, though, that lurid stories about alcoholic excesses on college campuses should always be accompanied with an explanation of how the 21-year drinking age encourages concentrated binge drinking.

Freedom of complex associations watch

Complex associations are associations-- "intermediate" or "civil society" or "enterprise" in Oakeshott's use of that word-- that themselves contain associations or systems of associations. Examples are the Catholic Church, with its internal orders of many kinds from Opus Dei to Benedictine monasteries to the Jesuits, and universities, with their internal systems of student clubs. Complex associations must decide how wide to set the boundaries of freedom of association for their own internal groups; and their freedom to set terms for their own internal groups is itself part of their own associational freedom. Sometimes there are tricky, nested problems here; sometimes there could be complicated and subtle solutions. And then there's Tennessee.

NASHVILLE, Tenn. (AP) -- Lawmakers have given final approval to a bill seeking to rescind Vanderbilt University's "all-comers" policy, which requires school groups to allow any interested students to join and run for office. The Senate approved its version of the bill sponsored by Republican Judiciary Chairwoman Mae Beavers of Mt. Juliet on a 19-12 vote on Monday. The House later followed suit on a 61-22 vote. Voting yes were 57 Republicans and three Democrats and one independent. Voting no were 21 Democrats and one Republican. Thirteen members abstained. Christian student leaders have been vocal in opposition, saying their groups shouldn't be forced to admit members, and possibly leaders, who do not share their beliefs. Under the proposal, which is headed to the governor for his consideration, "a religious student organization may determine that the organization's religious mission requires that only persons professing the faith of the group ... qualify to serve as members or leaders. "No state higher education institution may deny recognition or any privilege or benefit to a student organization or group that exercises such rights," according to the proposal.

This is to place the associational freedom of subordinate religious clubs categorically above the freedom of association of the university.

Associational freedom

H/T Eugene Volokh: Apilado v. North American Gay Amateur Athletic Alliance holds that a gay softball league has the First Amendment right to limit the number of straight players per team.

Freedom of associations/ freedom in associations watch

Arizona is considering requiring universities to allow concealed-carry permit holders to wear their guns on campus, and Texas seems to be close to doing so.

One view: This fails to recognize the autonomy of universities as self-governing institutions. Merits aside, it is rightly a matter for universities to decide. Universities are much more likely than state legislatures to correctly understand the dynamics of classroom life, dormitory life, Greek systems and drinking, and much more that should go into making a decision about permitting firearms on campus. Public universities should be free (as private universities are) to decide that for themselves.

Another view: students and professors do not leave their freedom at the campus gates. The First Amendment directly applies to public universities: their self-government does not extend to passing hate-speech regulations, or discriminating against religious student newspapers, or judging candidates for employment based on their political views, or establishing a religion. In the many American states where the voters and/or legislatures have decided that individual freedom encompasses wide latitude to carry firearms in public places, the public universities don't have any authority to trump that judgment. Public universities, unlike private universities, must respect the freedom of their members as individuals. Their associational freedom to make their own internal rules is a lesser matter, and even somewhat suspect, since they are state agencies.