In my last post, which generated a lot of controversy, I discussed (but did not defend) FIRE’s (apparent) plan to defend the freedom of association rights of religious groups at Vanderbilt. The issue, briefly, is that the Vanderbilt administrators decided to require all student groups to allow anyone into their organization, regardless of their views. Again, Republicans can join the College Democrats and run for office, and openly practicing gay students can join conservative Christian organizations and run for office.
There’s an interesting apparent conflict of freedom of association rights: the freedom of association of student groups (the right to exclude based on belief) and the freedom of association of universities to govern student group policy (imposing admission standards on student groups). The aim of the last post – which was often lost in the discussion – was to invite commenters to help me figure out how to balance these claims across a range of cases.
Admittedly, my cases were not as well thought-out as they might have been. As a result, and in part at my prompting, we got bogged down in the details of the cases and missed the larger issues. That’s not to say we shouldn’t use cases, but they sometimes invite missing the forest for the trees. The question of freedom of association rights is critical for libertarian and liberal political theory – it frequently divides libertarians. And it would be nice to think harder about how to draw the relevant lines, at least to avoid the caricature (though often embraced) libertarian conception of freedom of association as permitting the association to do practically anything that members antecedently agree to.
So I’m going to start by assuming the caricature – if you voluntarily join an organization (like students going to Vanderbilt) and you agree to its terms, there should be practically no legal restrictions on what the organization may do so long as they are explicitly, voluntarily empowered to do so. And then I’m going to take baby steps away from it.
This time I’m not going to say where my intuitions are, because that doesn’t matter. I just want to ask you what you think. For each case, I am asking whether the state should be permitted to ban or regulate the distinctive practices illustrated by the case.
Case 1: Mad Max U: Mad Max U is an excellent university that admits only 1% of student applicants. MMU administrators decide to allow students to compete for slots with the rules of Max Max 3: Beyond the Thunderdome – a fight to the death (Two Man Enter, One Man Leave). The person who wins after four rounds gains admission (she must kill four opponents). Given how desperate some are for entry, MMU has many takers.
(Now, I’m not giving my view but for the love of God oppose this on legal grounds. A legitimate political order should have the authority to coercively prevent MMU administrators from establishing such terms for admission, at least for highly publicly funded private universities and public universities.)
Case 2: Rape State: Rape State University’s Chancellor, Todd Akin, stipulates as the price of admission that women give up their right to bodily integrity (assume the administration recognizes his authority to set policy unilaterally). If female students are sexually assaulted, they will have no legal recourse by contract. While those few female students who decide to go to RSU do not believe that they will be hurt, some turn out to be wrong about this. They ask for legal recourse, only to be reminded of their fateful initial agreement.
Case 3: Prison College: Prison college is known for its draconian penalties for poor academic behavior. At the end of each term, only students with an A average are left alone. All others suffer penalties. Students with a B average must participate in a public shaming event where faculty openly subject them to public abuse in front of administrators, other faculty and A-students. Students with a C average are placed in public stockades for three days, though with ample food and water provided. Students with A and B averages jeer and verbally harass them. Students with a D average are imprisoned for a month in a university-owned maximum-security prison facility. Students with an F average are placed in solitary confinement for the same time period.
Case 4: Scientology State: In a university established by the Church of Scientology, adherents are permitted to only study the writings of L. Ron Hubbard and others church-approved documents. Students who dissent in any way are either asked to leave on pain of severe financial penalties or to endure extensive brainwashing exercises, both agreed to upon entry.
Case 5: Ultramontanes College: Ultramonatists believe that the Pope has authority over local temporal and spiritual orders. They were instrumental in the Declaration of Papal Infallibility in the First Vatican Council. Some ultramontanists argued that the Roman Pontiff, “even in his private opinions, of absolute infallibility even in matters beyond faith and morals.” In this case, the extreme ultramontanists have established a university and anyone who dissents from any moral or theological claim is immediately expelled. All faculty must sign a statement affirming ultramontanism and no student group can form other than Roman Catholic organizations that endorse ultramontanism. Students are regularly drilled on (traditionalist) Roman Catholic dogma and must swear an oath of allegiance to the Pope every term before they can sign up for classes. (Incidentally, compliance with traditionalist Catholic doctrine entails partriarchal courtship norms, no access to abortion save in the case of life of the mother and no sexual activity outside of marriage of any kind.)
Case 6: Bob Jones University: Bob Jones University banned interracial dating until 2000. Yes, for real.
I assume that most libertarians will reject Case 1. Egalitarian liberals will reject all six cases, save maybe a purely privately funded Case 5. But who is right and why?
I suggest running through the cases bearing the following three organizational archetypes in mind: private university with minimal or no public funding, private university with extensive public funding and public university. Assume that in all six cases that some students wish to avoid the imposed requirements or violent permissions and to associate with other students to resist these policies.
Finally, ask yourself what unites your judgments about these cases. I’m obviously going to appeal to a principle of public justification, but how it applies in this case is not clear in the abstract (nor should it be).