Rights Theory, Liberty

Freedom of Association Revisited

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).

  • PG

    This glosses over the key issue – if this is a purely private university then standard libertarian position should be to allow all of these cases provided all parties have provided prior informed consent. If publicly funded, then standard position I would think would be to reject (rather than prohibit) all of these as there is nothing approaching public consensus that these are the things public money should be spent on. Where is the dilemma exactly?

    • I think the trick is to question whether the “standard libertarian position” is correct. I, for one, don’t see why it’s so standard. You honestly think mutual consent justifies having fights to the death for places in a university? Maybe I’m not as libertarian as I thought, but I personally don’t think a libertarian has to accept absolutely all consent as legitimate.

      • “I personally don’t think a libertarian has to accept absolutely all consent as legitimate.” Precisely my thought!

      • PG

        I’m all for questioning and certainly nobody “has to accept” any particular position, however if you start out from a broadly-defined libertarian position then the burden of proof is on you if you want to prohibit any consensual interactions between people.

        With regard to the particular example I would at the very least like to challenge the common intuition: we do allow adults to take all sorts of personal risks, often with perverse incentives involved. Why would private university admission be the place where you draw the line remains unexplained.

        • good_in_theory

          Why assume that “private university admissions” are somehow a unique case here, rather than simply an exemplar? If it holds for universities, it could hold for other forms of association.

          • PG

            For me the ultimate reason is that the primary freedom you have is freedom of state coercion, not freedom to tell other people what organisations they can and can’t create. Admittedly there are caveats to this position and it is not necessarily universally accepted even among libertarians. However wouldn’t you agree that assuming there is some action we would prohibit consenting adults in engaging in we should be even more strongly opposed to the state sponsoring this action from taxpayer funds? I would have thought you don’t even need to be a libertarian to believe in this presumption.

          • good_in_theory

            I was merely saying that if we are finding it just to prohibit consensual interactions between people, then there’s no reason to think we are finding it just *only in the case of universities*. So the question of “line drawing” strikes me as besides the point.

            Now, as to the burden of proof for prohibiting consensual interactions, I think that “consensual” interactions over the use of coercion need to be limited by the state. I don’t know if that has anything to do with libertarianism.

            This is to say that the state reserves for itself, in the final instance, the right to say that a particular punishment or act of coercion is unjust or inequitable. (It does not reserve the complementary right, however, to say that a particular punishment is *insufficiently* retributive, unless the infraction is otherwise an object of public concern.)

            So you can enter the Church of Scientology and claim that you are granting them the right to beat you and fine you and so on, but if you decide later on that you object to this treatment, the Church has to cease its use of any coercive power. In other words, private actors don’t get to use force at their own discretion just because they agreed to it in a contract. Individuals reserve their right to flee coercive policy which they have allegedly given prior consent for.

          • PG

            I agree we are talking about more than universities of course – my argument was that the public/private divide is significant here.

            I’m very wary of “the state [reserving] for itself, in the final instance, the right to say that a particular punishment or act of coercion is unjust or inequitable”. What is so special about the concept of “punishment” to justify that power? How exactly do you define it? Is a commercial contract that ends up going against one of the parties a “punishment”? Is a contract that says “if price of X is more than Y you have to pay me Z” a punishment if the condition is satisfied? Hopefully your answers to both questions are identical (ideally a “no” :)). Or is your argument really only about violent punishment? If so, would that mean that we need the state to regulate “dares”?

            I think what your example really shows is the need to establish that consent is properly informed – that is that there was no fraud involved (which deals with your “allegedly”). Once that is the case I just don’t see the really bizzare and worrying cases arising in practice – ok, maybe some small number of people will do stuff that’s really bad for them, but hey do you really think that a state prohibition will ultimately stop them (Isn’t that like outlawing suicide)? An even more difficult question is whether a prohibition, if successful, will actually help them. Sure bailing out people who have made bad decisions or have been unlucky will help them now, but whether it is a good policy ex-ante remains to be proven.

          • good_in_theory

            Here’s an attempt to put it perhaps more cleanly. All I’m saying is that those who are being punished/coerced in some way and object to it have a right to appeal their case to the state/the public.

            To your cases, compensatory and punitive damages are distinct. Of course there are cases where distinguishing them is murky. I’m not attempting a thick description here. In general, the difference between retribution and compensation is clear enough, and what I object to is removing the right to appeal the use of retributive power to a higher authority.

  • Sean II

    Your suggestion about how to run these cases presumes there are important differences between the three types of schools (private, semi-private, and public). Thinking about this issue in the last thread left me convinced there are no such differences.

    For one thing, how many schools can plausibly claim membership in the first category? Other than Bob Jones and Hillsdale, I’m drawing a blank there. Surely we are talking about a tiny fraction, with plenty of room for debate about what “minimal” might mean.

    More importantly, student themselves are so heavily subsidized that the whole industry should be regarded – like the housing business – as a massively favored state project. In no way can the spending of college students be compared to that of other consumers or borrowers in the pseudo-free almost-market.

    But even if you took the loans and subsidies away, the fact remains that our corporatist world is based heavily on a parchment raj that makes the decision to attend college anything but a free choice. For some reason, we are unwilling to tolerate certain forms of discrimination by employers (e.g., IQ tests), but we are thrilled to encourage discrimination based on education levels.

    That’s why, for me, they all look like public schools.

    • adrianratnapala

      But your conclusion seems to assume that as soon as the state touches something, it owns it. Why?

      It’s even more baffling when you say that because higher Ed. near compulsory if you want to be middle class, then all schools are effectively public. I don’t have a counterargument, because I can’t even see the argument.

      • Sean II

        That’s not my conclusion at all. Of course it’s a big, messy problem of degree. I’m not proposing some “one touch” or “one drop” theory of public-ness or whatever. A food truck doesn’t become a corporatist monster just because it parks outside the Post office and sells a few tacos to civil servants. But when nearly an entire industry depends on subsidies, subsidized loans, and the wild over-valuation of it’s product by monstrous corporations that dominate the economy, from my point of view higher education has clearly jumped the shark.

        And what’s baffling about the idea that our current fetish with the B.A. might not be a naturally occurring development? I mean, do you really imagine that employees seek and employers demand a college education because they care that their drones should know which war ended with the Peace of Westphalia? Have you honestly never asked yourself WHY and HOW college came to be seen as a passport to the middle class?

        • adrianratnapala

          But when nearly an entire industry depends on subsidies, subsidized loans, and the wild …

          That’s certainly much better than a “one touch” idea; but at most that means it’s OK for Congress to pass a law saying “Public funding will be cut of from universities unless they do XYZ”.

          Simply saying “Ha! you have done XYZ, stop it because the gummint don’t like it!” isn’t enough – although it might just about be acceptable for a public university run by the gummint in question.

          And what’s baffling about the idea that our current fetish with the B.A. might not be a naturally occurring development?

          That idea is perfectly sound. But how does it make private providers of B.A’s effectively public? And what what does any of that have to the that University’s rules about campus organisations?

          • Sean II

            Obviously someone like me objects to public funding of universities in the first place. But just because that funding exists, doesn’t mean I’m a-okay with the state using its power of the purse to fiddle about with the way colleges are run. Really, the only thing I can think that is less responsible than a tenured professor is a tenured congressman.

            On the second point, let’s try this: if 30% of American kids buy your product even though probably 25% don’t actually wan’t it, but simply because it is required for access to the best government jobs, the sweetest rent seeking corporations, and all the high-end occupational licenses, then your product isn’t primarily serving a private wish. It’s serving a public fad or fetish or whatever you want to call it.

            A college degree is about as private as a taxi medallion, and most people want it for exactly the same reason: so they can end up on the profitable end of an artificial scarcity.

            Does it really matter if the metal shop that presses and polishes the medallion happens to be “privately” owned. Of course not!

  • Dan

    In my case, I think a lot of the intuitive temptation for legally prohibiting the practices stems from the idea that some rights are inalienable and cannot be voluntarily waived this, it seems to me, is operative in at least cases 1 (perhaps the right not to be killed is inalienable, at least under certain circumstances), 2 , 3, and 4.

    I’d be very interested to see how argument from public justification would run — perhaps if you ran through it (even for the most egregious of these cases) it would assuage the some of the doubts (e.g. that rationality and reasons cannot bear the weight that are put on them in this context) some of us have.

    • TracyW

      On reading this, it sounds a bit like you’re implying that the right to not have sex cannot be voluntarily waived. (” some rights are inalienable and cannot be voluntarily waived this …
      is operative in at least cases … 2″)
      I don’t think that you meant to imply this.

      • Dan

        No indeed; what is plausibly inalienable in that case is one’s right to resist rape and to seek recourse after the fact. (It might be replied that it’s not rape if you have consented to the overarching policy, but that seems wrong to me: the consent presumably has to be there for each individual token sexual encounter.)

        • TracyW

          I don’t think it’s normal for people in a relationship to actively consent to each individual sexual encounter. (I don’t know what you mean by the adjective “token” here).

          Perhaps what might be plausibly inalienable is the right to withdraw consent to future acts, so S&M with no safe words is illegal too.

  • TracyW

    I’d say that for all these cases the relevant matter should be the ease of exit, which definitely rules out cases 1 and 4, the extreme cases in case 3, and perhaps case 2.

    As an aside: on case 2: As a woman I’d hardly call consenting to have sex “giving up my right to bodily integrity”. Even if I do wind up hurt by said consent, be that physically, by my lover accidentally standing on a delicate bit, or more seriously my lover giving me a drug-resistant STD, or emotionally by him then dumping me.

    None of these cases should be publicly-funded, as a general principle we should avoid spending taxpayers’ money on things morally outrageous to said taxpayer, without very good justification.

  • good_in_theory

    1-4 I’d reject in all 3 cases. The hunch I have as to the motivating principle is that each situation gives the university the power to punish, and this power should be regulated by the public authority. Requiring compensation can all happen in private law, but throw in punitive/retributive policy and in steps the state. (Note this implies that the state should be able to regulate, for example, punitive fines in the workplace.) But anyways, that’s all tentative.

    5&6: Leaning towards permissible if fully private, and the consequence is restricted to expulsion, and the student is protected from punitive retaliation and compensated any remaining tuition that has already been paid. If both parties can agree to some scheme other than expulsion, that’s fine. If you want to pay for indulgences for your sins and stay in the Church, go ahead.

    If receiving any public money, I’m inclined to say that the state should be able to make the receipt of public money conditional on adherence to particular public standards, when the money is meant to promote a particular public purpose, like, say, education. That goes both for money given to students and money given to universities. So if you want to go to Ultramontanes, you can’t spend your Pell grant on it, for example. So unless a policy is actually universal (UBI, universal health care, universal unemployment insurance, &etc), the government gets to define what it is willing to fund and exclude you if you aren’t what it wants to fund. I have a queasy feeling this might be more problematic than it seems to me right now, but this is just tentative.

    So the two (tentative) principles for settling the cases are these:

    The state retains final authority over punitive/retributive practices (this strikes me as a restatement of the state as maintaining the monopoly on violence).

    Money granted for a particular public purpose can be extended conditional upon compliance with public norms re: freedom of conscience, discrimination, &etc.

  • I’m the kind of libertarian who believes in certain rights which precede the right to give consent. For instance, I don’t believe in the right to sell myself into slavery. My right to be free precedes my right to sign a contract, and in fact I have no right to give up my right to be free.

    That informs my view of all of these cases. Case 1 is absolutely out of the question: a person is not entitled to sign away his right to life, and neither does any private organization have the authority to take that right away. Similarly, in Case 2, I don’t think anything a woman signs can take away her right to be vindicated by the state in the case of a sexual assault. Case 3 for me works much like 1 and 2.

    Case 4 is a little different. In general I find it difficult to argue that “brainwashing” is a direct violation of a particular right to which we are all entitled. No doubt it can have very damaging effects and may even be dangerous to society. But on the other hand, can we really claim a right not to be told false things repeatedly? I think perhaps Case 4 is actually tolerable if you scratch the “severe financial penalties” suffered in leaving. Case 5 is, similarly, tolerable, provided there are no penalties for leaving (other than having lost the money required to enroll). I’ll have to think more about these cases.

    Case 6 seems to violate the right of individuals to associate with one another one such a basic level that the state might be justified in intervening. This is tricky, because it’s one form of association versus another. I suppose you could also bring up the issue of privacy, though, which would make the school’s policy seem even less tolerable. I’m not at all sure I have the right answer here, but I find there may be reason for the state to intervene on this one. (Thankfully, the necessary change happened without the state intervening. Eventually.)

    • martinbrock

      I believe you have a right to sell yourself into slavery (subjection to another person for life), but I do not believe that anyone else has a right to enforce the contract. Any minarchy I would support dissolves this contract through something like bankruptcy. On the other hand, if you really want to subject yourself to another person for life, that’s none of my business.

    • TracyW

      Case 1 is absolutely out of the question: a person is not entitled to sign away his right to life,

      Is this right? For example, does a person not have the right to try climbing a dangerous mountain? Climbing Annapurna has a fatality rate of 41% apparently.

      Similarly, in Case 2, I don’t think anything a woman signs can take away her right to be vindicated by the state in the case of a sexual assault.

      But whether something was sexual assault as far as I know (I’m not a lawyer) turns on whether it was consent or not.

  • There’s something tendentious still in the implication that “the right to form an officially-recognized student club that will be subsidized by the university” is even vaguely similar to “the right not to be raped.”

    Perhaps– perhaps– one could say that freedom of association per se is inalienable, so that one could not consent to join a university that compelled you to quit extramural associations. I don’t think this is tenable, by the way; the Catholic Church can surely demand of me, upon becoming a member, that I resign from the Church of Latter-Day Saints. And indeed universities trying to rid themselves of Greek systems sometimes have sometimes forbidden membership in fraternities altogether– not simply refused to give them institutional support, but actively banned them.

    But say that we think that’s unacceptable, and that an association cannot legitimately demand of its members that they refrain from joining or forming other associations of their choice. What follows for the institution’s duty to lend its name to or subsidize such organizations?

    Nothing, nothing at all. A university is free to not have an institutionally-subsidized domestic associational sphere at all, and that is no violation of freedom of association. This fact immediately ruptures the path from Kevin’s parade of horribles to Vanderbilt; the right of freedom of association does not entail the right to a university-named-and-subsidized club.

    Now, I think one could agree with that and still endorse some normative constraints on what a university that *does* have such a sphere of subsidized clubs may do with it. Rule of law-like constraints, for example, seem to me legitimate to insist upon: whatever the university’s stated rules, it must abide by them with procedural fairness.

    But the norms applicable to the university here mostly aren’t going to be derived from arguments about consent and inalienability, because the sphere of clubs isn’t a matter of entitled right. They’re mostly going to be derived from the university’s own legitimate purposes in creating a sphere of clubs. (The university is, in Oakeshottian terms, an enterprise not a civic association– it has purposes, not only neutral adverbial rules.)

    • Maybe (maybe, though I doubt it) I can’t alienate my right to eat kosher and therefore there cannot legitimately be a cooking school that requires me to be able to cook roasted pork and sample my own food. Even if true, this is perfectly irrelevant to the claim that I have a right to a university-subsidized dining hall that keeps a kosher kitchen.

      • I’m still mulling over your comment, which is as insightful as I thought it might be. But tell me this: do universities generally have a right to shut down all student groups on campus, rescinding recognition and subsidies? And if so, can they prevent student groups from meeting in any university buildings (save perhaps dorm rooms) unless the groups abide by any university terms? These questions are not meant as a challenge. I genuinely want to know.

        • Legally, yes to both, subject to the duty to do so in a way that follows its promulgated rules. And I’d say morally yes to both. (Including dorm rooms, by the way– universities have much greater scope to regulate dorms than landlords do to regulate rental apartments. They can, for example, have single-sex dorms.)

          Now, sometimes, the right to ban something completely does not entail the right to ban it selectively. You can have a general law against killing cattle but not a specific one against sacrificing them for religious reasons; you can forbid all groups from holding rallies in the town square at midnight but you cannot forbid only Democrats from doing so. You can have a restaurant that does not serve breakfast, but you cannot have a restaurant that does not serve breakfast only to blacks.

          But we have to reason differently about cases like those, and not start from the individual right to kill cows, hold rallies at midnight, or have a particular restaurant serve me breakfast. The question is not one of whether or not the individual right can be waived at all.

          • OK, so now let me get a little tricksy. In your first comment, you said “The right of freedom of association does not entail the right to a university-named-and-subsidized club.” OK, I’ll grant that in general freedom of association does not *entail* such rights unless of course they are entailed by being consistent with a university’s generally promulgated rules. But three concerns.

            (1) Its harder to see that the right of freedom of association does not entail the right to meet in a building on your campus, than having university recognition or subsidies. I’m happy to make a distinction between the two, but it seems to me pushing it to say that a university’s right to freedom of association permits it to prevent students from meeting together even in dorm rooms. My sense is that you’ve stepped over some sort of intuitive line. The coercion involved in breaking the students up seems pretty hard to justify unless you push really hard on the whole *but if you give states an inch of authority to regulate intermediary institutions, they’ll take a mile* point (which is totally valid, btw).

            (2) Why is a university bound to follow its generally promulgated rules? That seems to be a restriction on its freedom of association. In my book, its a fine restriction but that’s because its rooted in some moral notion of equality or fairness that might have other implications (ones that you and I both would resist making too thick, but that I would want to be interpreted in a broadly liberal way rather than the secular egalitarian way in which Vanderbilt interpreted its commitment to fairness).

            (3) While the post was not about Vanderbilt, you can imagine the religious groups objecting that the university is *not* following its generally promulgated rules protecting, say, religious freedom. I’m not sure if I’d run the complaint that way, but it might have some validity even on your view. What do you think?

          • 1) I can agree with you that it is “harder to see” and yet maintain that it’s not *that* hard to see. The university is a corporate property owner, and its buildings are its property, dorm rooms included. The rule would be hard to substantively justify, but the alternative is very hard to turn into a legal rule. Churches, again, have an absolutely clear legal right to lock their doors to schismatics and apostates who wish to show up and hold a service. The law favors a single clear corporate property owner over a diffuse group of members each of whom claims the authority to set the property’s rules.

            2) for a later day, but this is the rule that I think one can get to from consent or contract.

            3) You can imagine it, but it would be false, as the all-comers rule is an openly-stated rule that conditions its other commitments such as to religious or political freedom of association. There’s no Vanderbilt First Amendment that trumps other internal rules. Maybe there was a problem of transition or adoption– if that’s what you mean, I don’t know the relevant history.

          • SimpleMachine88

            “You can have a general law against killing cattle but not a specific one against sacrificing them for religious reasons”

            No, it goes further than that. We have a right to “free exercise of religion”, and the government must accommodate that within reason. That a law is prima facie neutral doesn’t matter. See Church of Lukumi Babalu Aye v. City of Hialeah

          • The example is from Locke, and was one I thought Kevin would recognize for the uncontroversial point. What to do with a prima facie neutral law that incidentally impairs religious practice is more controversial. I favor the position you describe (and I suspect Kevin does too) but City of Hialeah doesn’t stand for that position, which had been rejected by the same court just (IIRC) two years before in Oregon v Smith. The rule in City of Hialeah wasn’t prima facie neutral in the way that a general ban on killing cows would be. It was specifically targeted at Santeria ritual sacrifice. There was a thin veil of neutrality, but the rule was riddled with exceptions for everything except the Santeria practice.

    • good_in_theory

      I agree with the sentiment that whatever our answers to these questions, they seem to have very little to do with what’s happening at Vanderbilt.

    • Maybe I’m just piling on here, but it’s clear that all of your examples are of individuals giving up rights that they have as citizens in order to matriculate to a university, and the question we’re invited to answer is, which rights is it legitimate to waive or alienate? E.g. can you waive rights not to be killed, to bodily integrity, etc?

      And maybe I’m stating the obvious here but the Vanderbilt policy under discussion involves no one giving up any rights that they have as citizens. Vandy students still have all of the same rights of freedom of association that they had before matriculating. What’s happening instead is that, as Vandy students, they GAIN various options: they can now form “official” student groups and get various kinds of support from the university. But the university attaches certain minimal strings to those benefits: your group has to meet such-and-such conditions in order to be an “official, recognized” student group.

      So this is a complete disanalogy.

      Maybe you think that, because university students at a school like Vandy spend so much time on campus, and leaving campus is costly and difficult and so on, requiring “official” student groups to meet the conditions in question is somehow coercive in effect. But that ignores the fact that Vandy offers meeting space to “unoffical” groups as well as official ones, free of charge (AFAIK), not to mention that students have the option of meeting in public spaces (lawns, cafeterias, etc) if they can’t be troubled to reserve a room. All that “unofficial” groups lose is money, publicity, and the Vanderbilt name. If that amounts to a coercive offer then all I can say is that you set the bar of coercion INCREDIBLY LOW.

      • Also: “openly practicing gay students?” What century are you from?

        • I don’t get it. I was looking for a phrase that was both accurate and morally neutral. What would be a better phrase?

          • I was just kind of ribbing you. But you can just say “gay.” One doesn’t openly “practice” gayness (unless perhaps one is an exhibitionist), anymore than you openly practice heterosexuality

          • Well, how about “students who engage in homosexual sexual activity and have homosexual romantic relationships”? Because that’s what conservative Christians object to on theological grounds. But its a mouthful, so I tried another option.

          • I think “gay” covers all of that :p

          • But there are celibate gays, many of whom are religious believers.

      • First of all, I’m not focused on Vanderbilt in this post, which I thought I made clear.

        Second, the Vanderbilt analogy – were I to draw it – would be that students are giving up freedom of association and speech rights where they live and spend more of their time.

        • BUT NO THEY DON’T!!!!! They don’t give up any rights. They just gain options with strings attached.

          • We’re about to get into some deep stuff, but giving up a right is compatible with gaining options with strings attached. You can hand over your right to certain options (the right to exclude) in order to gain other options (campus recognition and funding).

          • The important point is that you don’t give up your right to exclude in any of your not-officially-recognized-student-group associations. So you’re not even handing over the right. You’re handing over the right ONLY with respect to official student groups. And since the university isn’t obliged to provide you with official student groups in the first place, it’s hard to see how they’re obliged to provide you with official student groups WITH the power to exclude. Everything Vanderbilt does for student groups is a pure bonus on top of the student’s ordinary civil rights of association and exclusion. It’s all gravy.

            I mean, look, I see that you’re motivated by a sincere concern for the ability of devout religious people to effectively organize. And that’s a perfectly noble motive. I would agree that the new policy makes it harder than it was under the old policy for devout religious people to do things that they have perfectly valid (and non-homophobic) reasons to want to do. But the idea that this amounts to ANY kind of infringement on those student’s liberty is ludicrous, unless we’re talking about robust positive liberty.

            They can still do those things off campus. They can still do them on campus in an “unofficial” capacity. The idea that the university owes them more than that is going to lead to some pretty un-libertarian implications in other spheres.

          • So let me ask you the question I asked Jacob: is it OK for private universities to deny students access to campus buildings for their meetings? Including dorm rooms? No official recognition is required on this view. In this case, the university regularly breaks up meetings in their own buildings, including dorm rooms, and subjects them to low-level monitoring. In this case, freedom of association rights seem seriously truncated. Am I really out to lunch here?

            As for my own motivations, most of it comes through being a student organizer for libertarianism and recognizing how it feels to have the people you live with – your home for four years – threaten to deny you from the same recognition given to all other groups, largely due to your conscientious commitments. While at Wash U, my College Libertarians group had a ton of leeway, the fact that we were in a distinct minority was never lost on us. I understand not having official university recognition or funding is not a student’s right, but it does seem to me a student’s right to meet with other students in their own homes to share ideas, have meetings and organize on behalf of causes within certain limits. Is this really a “ludicrous” thing to believe?

          • That’s not ludicrous! I agree that thought-policing or assembly-policing in that way would be really morally problematic (although I’m not sure I’d say it should be illegal, given that lots of Christian schools engage in rather invasive forms of morals-policing and I’m not sure even I think that should be illegal).

            I just don’t think that can be the “thin end of the wedge” that can get you to the claim that the Vandy policy is problematic… I’d wanna say that the Vandy policy is a reasonable restriction on one’s public participation in official groups whereas the policy you describe is a rather draconian intervention in one’s “private” life as a student. But that’s just me.

            I totally sympathize with your concerns, though, even if that’s not always clear from my exasperated tone. I’d even agree that the Vandy policy seems like a rather blunt solution, where a more finely-tailored one might do better. One way to think about our disagreement is that I’m more worried about the prospect of the College Libertarians deciding that, say, only Nozickians are “true” libertarians and Rothbardians and pro-market Rawlsians and so on aren’t welcome, than I am about the prospect of a bunch of Marxists wasting there time on trying to hijack your group. It sounds like maybe you’re more worried about the other possibility, which is not unreasonable.

            (I’m also working with the background assumption that Vandy doesn’t recognize redundant groups, so they Rothbardians couldn’t go off and start another “Vandy College Libertarians” if they’re kept out of the existing “official” group… that there’s a sort of monopoly power that comes with having the title “College Libertarians” that needs to be regulated. I’ve tried to see whether that’s actually true–I seem to remember it from my time there–but I can’t find the policy on starting a new organization)

          • ben

            Full ack.

            Kevin is making pretty much the same argument, as the Crooked Timber bloggers made with respect to workplace rules:

            That private entities voluntarily giving out benefits/privileges with strings attached to other private entities who would voluntarily accept them, are somehow “corecive” or taking away “legal rights” from the latter.

            They don’t.
            Student groups do *not* have a legal right to use the facilities owned and paid for by the University for any particular purpose, so there’s no legal right to be taken away.

          • I don’t know that he’s trying to make that argument, but he’s feeling around for it. And yes, I agree, I don’t see how you could make that argument in this case without also accepting the Crooked Timber argument

  • adrianratnapala

    “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?”

    Actually no. I haven’t thought it through yet, but on gut reactions, the only one that truly shocked me as Case 2.

    • martinbrock

      Is case 1 more shocking if Mad Max U admits only women?

  • adrianratnapala

    I think it is telling that 1-3 are so *ing weird that they seem to belong only philosopher’s never-never-land. In fact 4-6 are similar: they might existing in the real world (6 apparently does), but they will only ever be fringe institutions.

  • As a libertarian, I am strongly in favor of case 1. This is because it is, to appropriate a term used by Bastiat, “totally awesome”. Individual rights NEED to be balanced against the need of the general public to slam down case after case of PBR while watching pathetic nerds fight for their tiny lives. Hey Sandy Rashkell, looks like your po-mo graduate thesis “disentangling skeins of modal guilt” wasn’t much help against falling into the pit of chainsaws! Who’s getting deconstructed NOW?

    Oh, also, its only okay if they’re poor. I wouldn’t be a libertarian if I didn’t conform to every idiotic Patrick Batemanesque stereotype the left has of me.

    • Sean II

      I came here tonight with the intention of writing a serious comment, but all I could do was call up Mad Max III from my Tivo and then write this:

      “Listen all! This is the truth of it. Disagreeing gets to excluding, and excluding gets to hating…and that was damn near the ruin of us all. Look at us now, busted up and everyone talking about ‘legitimate rape.’ But we’ve learned, we’ve learned by the gaffes of them all. Vanderbilt’s learned. Now when men…I mean, when persons get to fighting, it all happens here. Or rather it doesn’t happen, because they get to voting in a fashion what fits with democratic procedure instead.

      Two groups enter, one group leaves. Or maybe one person enters, one group leaves. Or maybe many persons enter many groups, and they all leave. It isn’t terribly clear yet. But right now I’ve got two groups, two groups with guts full of fear. Ladies and gentlemen, boy and girls, transgenders and cisgenders… joining time’s here!”

  • martinbrock

    In case 1, no state needs to forbid this policy, because regardless of hypothetical assumptions, few if any prospective students would accept the entry criteria in reality.

    If students are accepting this policy, then I want to know why they’re so desperate to attend Mad Max U. If a degree from Mad Max U is so incredibly valuable, I want to know why. I can imagine such a valuable a degree only in the context of other forces offending my libertarian sensibilities. Opposing free association on these grounds takes these other forces for granted.

    Case 2 is similar. Why are women agreeing to be raped at this university? What is the source of the university’s power to attract women to this contract? If women starve without a Rape State degree, I’m looking for other problems with the system of forcible propriety, not wearing blinders revealing only this problem.

    If Rape State permits only rape without serious physical injury, this contract differs little from a prostitute agreeing to have sex with all comers in some context.

    I would not forbid a woman to make a porn video in which she has sex with everyone on a football team for example. That’s up to her. If lots of women are doing this sort of thing, I want to know why, but some women are completely willing.

    Saying that some women will be physically injured anyway adds nothing here, because anyone at any university can be injured unlawfully.

    Case 3 is not a problem for me at all. I might have been better off in such a university myself. Are we also forbidding people to join the military or a similar, private organization?

    Cases 4, 5 and 6 are not a problem either. As you note, these universities already exist. They’re not for me, but “not for me” is not my criteria for forbidding something.

  • SimpleMachine88

    I think it comes down to whether you think rights can be disposed of like property, or are inalienable. The problem with any of these cases, aside from whether or not it receives public moneys, is if you are prohibited from leaving, or required to pay penalties to do so. There are limits to what can go into a legally binding contract.

  • Sean II

    It’s interesting that there’s been so much talk about what a universities are legally allowed or morally obliged to do, and so little about what they ought to do in view of their particular mission.

    If the purpose of a university is to provide a liberal education, surely the liberal part suggests they should do certain things when not strictly required. In the obvious case, this might mean letting a campus protest take place even when the law would clearly allow a school to shut it down.

    In the case at hand, I wonder why a university would want so badly to protect its students from the simple and basic fact that social exclusion is a part of social life. Hell, even if the purpose of college is merely to prepare people for adulthood, it seems a terrible thing to conceal this from students.
    If I had a kid in school, I’d want the institution to tell him something like this:
    “Look, not everyone likes you, and not everyone has good reasons for it either. Some people may even form groups built around the idea of not liking you. We think that’s unfortunate, and we wish it weren’t so. Under the law, we could stop them from doing so, but we won’t. Why? Because we are committed to giving you as much or more freedom to associate than you would enjoy outside these walls, and because in the end it is our purpose to acquaint you with the realities of life, not to hide them from you.”

    • good_in_theory

      College students typically have just come from high school. “Social exclusion” is not something with which they really need to be familiarized, is it?

      If we want to talk about the purpose of a university, wouldn’t it be to force upon the students the idea that *pluralism* and *disagreement* are basic facts of life? That one can’t always simply *exclude* or *seclude themselves from* antagonists?

      In any case, students remain free to practice social exclusion in their frats and sororities, in their study groups, in their house parties, in their pub crawls, &etc.

      The relevant ‘talking to’ would be this:

      “Look, you don’t like everyone, and you don’t have good reasons for not liking everyone you don’t like. You may even form or join groups built around the idea of not liking others. We think that’s unfortunate, and we wish it weren’t so. Under the law, we can’t stop you from doing so, and we won’t. You can exclude whomever you’d like from your trips to the beach and your dinner parties and your off-campus congregation and your pick up game of frisbee.

      But if you want the university to endorse and accomodate your purposes and activities you will have to deal with all comers, giving you as much or more acquaintance with democratic freedom than you would enjoy outside these walls, because in the end it is our purpose to acquaint you with the realities of life with others in a democratic society, not to enable and encourage your easily exercised right to hide from others. You are, after all, at a university”

      In sum, the idea that the university is about practicing one’s ability to “exclude and be excluded” rather than to “include and be included” strikes me as ass-backwards.

      • Sean II

        I think you’ve summarized our disagreement neatly enough, but I don’t understand your position any better. You seem to claim both that these policies are good and right and proper AND that they change nothing since every student still has all the same rights as before. I don’t see how you think both can be true.

        But I am intrigued that we invoke the same values to such different ends.

        I think pluralism can ONLY be found on the kind of campus that allows BOTH an “Obedient Islamic Wives Club” and a “Third Wave Feminists Discussion Group”. Furthermore I don’t believe associations like those can really exist if they are pressured to accept each other’s members. The point for me is simply that an individual student should have those (and many other) groups to choose from. The more groups, the more choices, the better.

        You think any student should be able to join any (official) group, even if that means taking away the groups’ right to refuse, which is the same as destroying its right to exist as a self-defined group. In other words, you think every student should be a potential member of every group. I’m not sure what I would call that: social monism, associational unitarism, group one-ism, pan-joinery…but I definitely would not call it “pluralism”.

        In fact I think it’s the death of pluralism, and what’s more I’m pretty sure it can only end by driving some groups out of existence, not with the power of superior ideas, but simply with superior power.

        • good_in_theory

          No, they change something. They favor groups where either (a) there are unlikely to be disagreements or (b) the group can survive despite disagreement. Some students have different *privileges* than before. Their rights don’t change. The distribution of privileges is what changes the shape of the university community. The right to form an exclusive group would simply replicate society at large – it folds the university into everything else.

          The campus doesn’t *disallow* any group by forcing *university* groups to welcome all comers. If the university were to obstruct the *individual* rights of students to associate and express themselves, then there would be a problem. (But private universities have a right to be problematic in that way – they can bar individuals from, say, apostasy, and hence as a consequence bar apostate groups).

          Taking away an official university group’s right to refuse does not destroy the right to exist as a self-defined group, it destroys the privilege to exist as an incumbent-member defined university group.

          Forcing membership to be open to all does not destroy the independence of groups. It merely means that groups are defined by their participants. The formal possibility of everyone participating does not lead to the empirical reality of everyone participating, it merely risks the possibility, just as open borders within the US risk the possibility of everyone moving to Muncie Indiana.

          • Sean II

            You’ve struck the nail. Favoring groups where “there are unlikely to be disagreements” is exactly what I fear.

            When it comes to things that switch off the brain, consensus cripples far more people than schizophrenia or stroke.

            What part of a university’s mission suggests it should apply pressure to tamp down on disagreement? And what makes you think that pressure won’t itself be applied in an arbitrary and uneven way?

          • good_in_theory

            What groups do you think are groups that aren’t prone to disagreement?

            Frankly, I don’t really think the sort of consensus that’s likely to occur in “the hiking club” or “the ballroom dance” club is much of a problem, and I don’t see an issue in the university promoting these sorts of anodyne groups.

          • MARK_D_FRIEDMAN

            You say, “Taking away an official university group’s right to refuse does not destroy the right to exist as a self-defined group, it destroys the privilege to exist as an incumbent-member defined university group.” Of course this is right in a trivial sense, but misses the main point.

            On this logic, Vandy could simply refuse to recognize as a university group the college libertarians. The Vandy libertarians can still function, just off campus, w/o access to campus email system, the right to meet and distribute its literature on campus, etc. No harm done, right? Meanwhile the Vandy Dems and Vandy Republicans are recognized, with all the advantages this confers. This sends a very clear message that the Vandy administration regards the libertarians as morally illegitimate, but not other political groups.

            I don’t understand why you seem to think that if 20 Christians wish to meet as an entirely Christian group to share and reinforce their faith and one strident atheist wishes to join in order to mock them, the associative rights of the one outweigh the associative rights of the 20. By its all comers policy, Vanderbilt upholds the “right” of the one, and chases the 20 off campus. Funny how only religious groups get chased off, isn’t it.

            When Sean says this, “It’s interesting that there’s been so much talk about what a universities are legally allowed or morally obliged to do, and so little about what they ought to do in view of their particular mission,” he is right on point. Any university that holds itself out as an institution of higher education in the liberal tradition (broadly construed) should be neutral between competing lifestyles and definitions of the good. Otherwise it is engaging in indoctrination and not education. By disfavoring traditional religious groups, Vandy has failed this test.

          • I should let good_in_theory fight his own battles, but this is such nonsense that I can’t resist replying.

            You say, “on this logic, Vandy could simply refuse to recognize as a university group the college libertarians.” No. That’s not true. That’s the opposite of true. Under this policy, Vandy can (and will) refuse to recognize the college libertarians IF THEY REFUSE TO LET STUDENTS JOIN WHO DON’T MEET THE EXISTING MEMBERSHIP’S DEFINITION OF “LIBERTARIAN”. At issue here is NOT whether Vandy can willy-nilly revoke the rights of some groups on the basis that they don’t like them. That would obviously be wrong. What Vandy is doing is revoking the rights of groups that refuse to be democratically organized. It’s a procedural requirement, not a substantive one.

            Regarding your second point: the problem with a strident atheist showing up at a Christian fellowship and mocking the students there is not that he’s an atheist. It’s that he’s disrupting the group’s activities. There are perfectly good and valid reasons under the Vanderbilt policy to remove a disruptive person from a group, and those reasons have nothing to do with his beliefs.

            Moreover, why do 20 Christians who wish to reinforce their faith have to meet as the official Vanderbilt Faith Reinforcement Society? What do they lose by meeting unofficially (which they can still do! On campus! For free!)

            Finally, on neutrality: how is it consistent with neutrality to allow the existing members of an official student group to define in perpetuity who does and who does not count as a “real” member of the student group?

            “Hi, I’m a Vanderbilt student and I’m Catholic, and I’d like to join the Vanderbilt Catholic Students Association.”
            “Sorry, you don’t belong in our group. You’re gay.”
            “But I’m a Vanderbilt student. And I’m Catholic. I think I belong in the VCSA.”
            “There are no gay catholics at Vanderbilt.”
            “Yes there are. I happen to be one!”
            “No, sorry. We decide who is and who isn’t a Catholic at this university. And you don’t qualify.”
            “But I pay tuition and fees at this university, the same as you. My fees support your organization. And I’m a lifelong Catholic. Why can’t I join?”
            “Because we said so.”

            If anything is inconsistent with the mission of the university, it’s that.

          • MARK_D_FRIEDMAN

            I appreciate your passion, but not your logic, which is deeply flawed. When Vanderbilt dictates that the minority of one, and not the 20 Christians in a fellowship group, gets to decide the issue of membership, it is doing exactly what I said. It is symbolically holding that the the group of 20 are morally illegitimate, and not worthy of bring a Vandy organization. I will ask you the same question that I asked GIT, which you completely ignored. Why does the associative rights of the one carry greater weight than the equal rights of the 20? If you cannot answer this simple question, then by favoring the one, Vandy is acting wrongly.

            Your discussion of my example of the strident atheist who wished to disrupt the 20 Christians is also off the mark. Please cite the provisions of Vandy’s all comers policy that you refer to that authorizes the exclusion. Just cause you assume it doesn’t make it so. Moreover, my example does not entail disruptive behavior at all. The atheist is very polite. Its just that every time a Christian speaks, he asks to be heard, and then spends the next half hour expounding on Richard Dawkins, Christopher Hitchens, etc.

            Lets deal with your favorite case. People have a right to associate with whomever they wish, even though it may seem wrong and bigoted to you. Hence my point, also ignored by you, that the mission of an institution of higher education is not to take sides between competing visions of the good, even visions that it disapproves of. Your case may seem clear and easy to you, but if you authorize the university to act this way in your case, then on the same principle, they are authorized to do it in ALL cases. When Vandy takes sides it indoctrinates rather than educates.

            This is by now a minor point, but you are also wrong on your facts. If you watched the FIRE video, you should know that the 13 Christian groups who insist on defining their own membership cannot meet on campus. If you have different information, please cite your source. Again, by forcing these groups off campus, Vandy is stating loud and clear that it regards these associations as morally illegitimate. Its moral judgment, like ours, is fallible. By pretending otherwise, it is taking a deeply illiberal position, whether you see it or not.

          • “Why does the associative rights of the one carry greater weight than the equal rights of the 20?”

            Here’s the way I look at it. The Vanderbilt X Association does not belong to the 20 kids who are currently members. It belongs to the university and to the students. The incumbent members don’t get to define the rules to let in only their friends and keep out the kids they don’t like, or to let in only those who agree with them and keep out those who dissent. Anybody who wants to do “X” at Vanderbilt should be able to join the VXA, for any X.

            If you want to have a group that’s just you and your 20 friends, or just you and the people who think like you, then you can do that! I have no problem with people associating with whomever they please and excluding whomever they don’t please, and neither does Vanderbilt. But if you want to do that, then you don’t get to be the VXA. You’re just a bunch of Vanderbilt students X’ing together. The VXA is for any Vanderbilt student who wants to X.

            You seem to think that the VXA SHOULD belong to the incumbent members, and they should be able to set any membership criteria they want. Why should the university have to support that? That just sounds crazy to me. The university’s role in promoting student groups is not to encourage little oligarchies and petty tyrants. If I’m a Vanderbilt student and I want to X, how on earth can it be reasonable for the VXA to keep me out because they don’t like my face?

            Next point: “Again, by forcing these groups off campus, Vandy is stating loud and clear that it regards these associations as morally illegitimate.”

            Well, distinguish between the judgment that the substance of the group is illegitimate and the judgment that the government of the group is illegitimate. Vandy isn’t saying that religious groups can’t be on campus because religion is dumb. They’re saying that religious groups can’t be on campus IF THEY’RE GOVERNED UNDEMOCRATICALLY. There’s no substantive judgment about the merits of their faith at all. (And note that plenty of religious groups have managed to comply with the rules and remain on campus).

            Now, about the factual stuff:

            “Off campus” is sort of ambiguous between “unofficial but physically on campus” and “literally off campus.” Tons of “off-campus” groups meet physically on campus. When I was a Vanderbilt student, booking a room was as simple as calling the Office of Student Life and asking for one. They never asked me what group I was with or whether we were “official.” Maybe things have changed. That was 10 years ago, after all. But even if you can’t book a room, if you have a small group, your group can meet in your dorm room, in the lounge, in the cafeteria, on one of Vandy’s many well-manicured lawns, at a coffee shop, etc. Vandy isn’t the DDR. There aren’t campus police roaming around, breaking up groups of students who have assembled without a permit.

            Now if your group is big enough, then yeah, you might have to find physical space off campus for your group. You may not be able to reserve a large-enough space on campus without paying for it. I have no idea; I never tried to book a room for more than, like, 10 people. But if your group is that large, how big of an obstacle can it be to find space off campus? (Especially considering that there are about 10,000 churches in Nashville that would probably be happy to help a religious group from Vandy stick it to the godless administration!)

          • MARK_D_FRIEDMAN

            Since my comments are apparently no longer “such nonsense” that you can’t wait to rebut, perhaps we are making a tiny amount of progress. You say that you understand that off campus “I have no problem with people associating with whomever they please and excluding whomever they don’t please.” Why do think this? Why do people have the right to be bigoted (at least as you see it) in their private sphere? Now, what changes when they become students?

            I understand that Vanderbilt has the right to give or withhold its imprimateur as it likes, but having a right is not the same as being morally right in one’s actions. Why is Vanderbilt unwilling to recognize and protect the rights that you agree its students have immediately before they matriculate and immediately after they graduate? Why does exercizing this right strip you of being the Vandy X and forfeit the advantages that other groups continue to enjoy?

            The “democratic elections” issue is a complete red herring. First, in my example (and yours) the 20 Christians simply outvote the one strident atheist. Problem solved. So its NOT about elections, its about membership. If I am right, the strident atheist doesn’t get to vote, cause he/she isn’t a member. Again, you have no answer to the absurdity of having a Christian fellowship group include a person who (politely and civilly) mocks religion between every testimony to Christ.

            If it makes it any easier for you, imagine a group “Vanderbilt Students for Social Justice.” This group accepts into its membership Maxists, liberal Democrats, left-libertarians, egalitarians, etc. Its purpose is to discuss the theoretical basis and meaning of social justice, and to strategize how it can be promoted locally, nationally and globally. A devoted follower of Ayn Rand demands to join, and after every comment politely insists on giving an analysis and rebuttal–social justice is a mirage, etc. And worse, an excuse for looters and moochers to take what isn’t theirs. Do the Students for Social Justice really have to put up with this? Why can’t the Ayn Rand fanatic join the group that worships Rand? Why does his right trump theirs?

          • Sorry, the “nonsense” comment was directed at your paragraph a few posts above, beginning “On this logic, Vandy could simply refuse to recognize as a university group the college libertarians..” That paragraph seemed to suggest that you were implying that at issue was Vandy kicking groups off campus that it disapproved of substantially (i.e. “we don’t like Christians, or libertarians, or whatever,so hit the road”) rather than imposing a procedural requirement.

            Obviously we’re not going to see eye to eye on this issue. Your worry, that obnoxious students will join groups just to cause a disruption or to try to hijack the group away from its legitimate purpose, seems remote to me. Being an atheist myself, I can’t imagine showing up at a bible study group just to mock (or even gently criticize) the people there. Maybe it happens, I don’t know. I grant that it’s a conceptual possibility, but it seems rather remote to me

            Still, I don’t see why saying “every student has to be eligible for membership” rules out the possibility of having rules. The policy requires that groups be democratic and open to all; not that they be anarchies that are subject to the whims of any individual who wants to be a nuisance! If a Randist shows up at my social democrat club, I don’t understand why one can’t just say, “sorry, the democratically-agreed upon agenda for this meeting says that today we are making posters to support the Teamsters, we’re planning our upcoming pilgrimmage to Moscow, and then we’re going to close by holding hands and singing “The Internationale.” Your desire to talk about Ayn Rand is out of order, and if you persist we’ll have to ask you to leave”

            Now if he came back with 21 of his Randist friends to take over our group and elect himself president, that would be a bigger problem! But really, who has that kind of time?

            Anyway, we’re not going to see eye to eye. I’ve told you why I think open membership is a good idea–namely because I think it’s inconsistent with the equality of students to let incumbent members of official student groups decide who is and who isn’t a “real” Vanderbilt Catholic, or Libertarian, or Marxist, or whatever. There’s not much more I can say except that we disagree.

          • https://anchorlink.vanderbilt.edu/organizations
            There’s a list of organizations at Vanderbilt. Most of them have websites, and many of their websites post their group constitution and by-laws. You can see that the mere fact of being forced to admit all comers hasn’t prevented them from finding ways to keep their organization focused on its proper purpose. I suggest you peruse a few before assuming that this policy means the dissolution of student life at the university.

            You can see the College Democrats constitution here: https://anchorlink.vanderbilt.edu/organization/collegedems/documentlibrary

          • good_in_theory

            If someone monopolizes meeting time in order to be contrarian, robert rules of order, or some other set of rules about parliamentary procedure, can easily allow for a democratic majority to shut them down.

          • MARK_D_FRIEDMAN

            If you can’t see the obvious absurdity of forcing the Vandy Christians (or the Vandy Marxists for that matter) to rely on Roberts Rules of Order to conduct their fellowship meetings, then I’m afraid there is nothing more I can say.

          • good_in_theory

            Rules of order are a tool to be used when the orderly becomes disorderly. Just because you call something a “fellowship” doesn’t mean it is somehow immune from acrimony, and when there is acrimony it’s nice to have some sort of standard. Having a procedure in place to deal with conflict doesn’t mean your meetings are going to be governed by a codebook.

          • Last thing I’ll say, honest: one thing you may not be aware of is that Vandy doesn’t recognize redundant groups. If the college Republicans won’t let you join because you’re a Ron Paul backer and “real” Republicans support Romney, you can’t just go off and start another Republican club and get recognition from the university. Presumably the reason is scarce resources.

            If you could just go off and start another Republican club, then I’d see the case for letting existing members define membership rules however they want. Just let the two groups compete. But given that you can’t do that, seems like there’s a strong case for saying that the existing Republican club can’t just willy-nilly keep out those who disagree with them. If having the moniker “Vanderbilt College Republicans” is a kind of monopoly power, the case for regulating that power gets stronger, doesn’t it?

          • good_in_theory

            Hey, I appreciate the help. I think we’re on the same page here so feel free to chime in on my behalf

          • good_in_theory

            1. It’s not a trivial sense. It strikes me as actually very *serious* that people are so easily seguing from ‘the university won’t let me name my group after them’ to ‘my rights to association are being infringed, help me!’

            2. Here you make this quite serious, not trivial, elision. “Unrecognized” college libertarians still have access to campus e-mail, with generally broad rights as a personal user of the account. They still have the right to meet on campus, as a composite of their individual rights. They still have the right to distribute literature on campus, in line with the broad protectiosn for freedom of expression atthe university.

            (of course, all of that is out the window if they’re at a private Christian college that polices its students beliefs and morality)

            3. Again, no associative rights are at issue here. What is at issue is the granting of the privilege of official recognition. The right of each individual to participate in a university recognized group outweighs the right of any group to exclude participants, yes. That doesn’t do anything to the right to associate. The rights of however many thousand vanderbildt students are being privileged over the rights of the 20 people who joined first.

            4. Letting incumbent members exclude whomever they’d like from the membership is not a ‘neutral’ position between comepting lifestyles and definitions of the good life. It is a grant of a monopoly right to the status quo leadership. It’s an inherently conservative, nationalist proposal. A liberal, cosmopolitan proposal does not privilege incumbents by giving them an unrestricted right to exclude others.

            Finally, religious groups have disfavored themselves by engaging in indoctrination rather than education, and conservative exclusion rather than liberal inclusion.

        • good_in_theory

          In general you seem to be possessed of the fear that if the University does not recognize an association, then that association will die. But university (or state) recognition is not necessary to form an association.

          What seems to me to be a more tenable objection is that without easy access to university/state recognition of an association, associational life will wither and die. I don’t think that is the case. I think that it might *appear* to wither and die if one’s only way of gauging the university or the state’s plurality is to look at its list of officially recognized organizations.

          In fact, the argument that a central certifying authority is somehow *necessary* in order to have a plural society strikes me as a rather non-Libertarian thought. It’s actually rather “statist”.

          • Sean II

            “The argument that a central certifying authority is somehow necessary in order to have a plural society strikes as….rather statist.”

            Yep, you’re right. Luckily no one made that argument here so we can both breathe a sigh of relief.

          • good_in_theory

            Well, this is what you are arguing when you’re saying Vanderbilt’s refusal to officially recognize some groups, while doing nothing to alter the broadly liberal policy towards individual rights of association, expression, and access to university resources, will cause fringe/radical/abnormal or otherwise “queer” groups to wither and die on the vine.

        • It’s worth thinking through the implications of the right to exclude. You’re correct that the right to exclude has the agreeable consequence of preventing a bunch of smart-ass Democrats from taking over the College Republicans, or a bunch of uppity gay students from hijacking the Southern Baptist Student Association and turning it into the Pride Committee.

          But it also means that the College Republicans can decide to exclude the Ron Paul fanatics if they decide that Paulites aren’t “real” Republicans. And the Southern Baptists can exclude Southern Baptist students who happen to be gay on the grounds that, well, they’re gay. It means in general that the incumbent powers at any university student group have to power to exclude anybody they like, and that is something that should worry you at least as much as the prospect of a bunch of feminists infiltrating the Muslim Student Association.

          My only point is that your policy has costs, too. While I acknowledge that the all-comers policy entails the (so far entirely speculative) possibility that a group of activists (or pranksters) will go around trying to hijack groups that they disagree with, the alternative policy has the not-at-all speculative but very real consequence that incumbents will abuse the power to exclude.

          (And, hey, for the record, it’s not like 100 gay students can just get together one night, show up at the Conservative Christian League of Straightness and instantly take it over. Nothing in Vanderbilt’s policy says that! Groups can still have constitutions, rules, conditions on voting rights, etc. They simply can’t exclude students on the basis of their beliefs).

          • Sean II

            Of course the other policy has costs – I would never deny that. But those costs aren’t centrally planned by some administrative board that gets to decide which groups are inclusive enough, democratic enough, etc.

            Those costs arise directly from the marketplace for associations. Groups that exclude arbitrarily aren’t banned, they’re punished. What’s more, they’re punished in proportion as they exclude. The more arbitrary standards you’ve got, the smaller your group will be, and the less influence it will have.

          • It seems like you’re imagining a world where, if I don’t like what’s going on at the Vanderbilt College Republicans, I can just go out and start my own group–“The College Republicans of Vanderbilt”–and get university recognition and compete with the incumbents.

            That might be a nice world, but that’s not how things work at Vanderbilt (or at any other university I’m aware of). Vanderbilt doesn’t recognize redundant groups. Presumably the reason is scarce resources. Vandy can’t fund 5 Republican groups, 3 Democrat groups, 7 Southern Baptist Associations, 6 Secular Humanist Clubs, etc. There’s only so much money and space to go around.

            Instead, they’ve adopted a different policy–if you don’t like what the College Republicans are doing, you can join the group and try to change it democratically. But to make that work, it has to be the case that the existing College Republicans can’t keep you out just because you’re a Paulite instead of a Romneyite.

            One way to think about what Vandy is doing is that they recognize that being an “official” student group is like having a kind of monopoly power. And so to prevent incumbents from abusing that monopoly power, they require groups to be open to all comers, democratically run, and so on.

            Anyway three points I’m making here:
            1. “Central Planning” is a red herring. In any possible world, Vanderbilt has to make decisions about which groups to recognize and fund. The only way to escape central planning would be for Vandy to stop granting official recognition and support to ANY groups
            2. There are a lot of moving parts here. You seem to want to understand this as an instance of Vandy paternalistically intervening in what was once a free market of associations, but that has never been the case. You have to consider the implications of this policy in light of other policies, like the fact that having a student group is like having a kind of monopoly power.
            3. It’s far from obvious that having 7 different college Republican groups competing against one another, free to exclude who they like, etc, is a better solution to this problem than having 1 official college Republican group that has to take “all comers” and settle their differences democratically. Both have their pros and cons, I agree, but which is better for the interests of politically involved Republicans at Vanderbilt? Probably the one that teaches them how to deal with the fact that, in life, you can’t always just kick out the people you disagree with. (Witness the embarassment Ron Paul is currently visiting on the national GOP)

  • All of theses cases are acceptable under private funding and no public funding whatsoever should exist.

  • Hume22

    To what extent are these hypotheticals different contexts for asserting the legitimacy of paternalistic interference (whether weak or strong)? Suppose, for example, I believe (mistakenly) that I have the right to sell myself into slavery or consent to Gladiator-type battles to the death. Suppose that, after serious deliberation and reflection on my life plan and comprehensive conception of the good, I consent to Mel Gibson’s competition and seek to enter the Thunderdome. After hearing of this, you and your political comrades seek to use force or threats of force to stop me from entering the Octagon. Is this an instance of legitimate/justified paternalism or something else?

    • It is justified on the grounds that signing away your basic freedoms and right to life cannot be allowed in any state in order that the society not devolve into barbarism.

      Being concerned about human rights and limited government does not amount to a suicide pact or an abandonment of all civilization.

  • ben

    All universities 1 – 6 should be allowed to exist (as long as they’re privately funded).

    However, that would not mean that the involved individuals could legally follow through with the nasty things you mentioned.

    For example, a contract simply *cannot* sign away the “right to bodily integrity”. A person *can* contractually *promise* not to make use of that right or not to seek legal recourse in case it be violated. However, they can at any time break their promise and *do* make use of their basic rights (which they always had, inalienably). This would cause them to break their contract, and potentially subject them to claims for restitution.

    The contract would *not* absolve the other person from having to answer for their crime (rape, or manslaughter in the Mad Max example, or false imprisonment in the Prison College case).

  • 1 2 and 3 cannot be permitted because we have rights to life, liberty, and health, These cannot be signed away else we have no real society left.

    All others should be permitted. If you are a Scientologist, a Catholic, whatever, even if your views are extreme, then attending a place in which the only negative actions would be that you are asked to leave, or pay a financial penalty, then if you are an adult you should be allowed to make such an agreement, even if unwise.

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  • Gabriel Farkas

    Okay, I’m confused. What does it mean to “reject Case 1”? Does that mean you agree the state should be able to ban or regulate it? Or does it mean you’re rejecting the notion that the state should be able to ban/regulate it?

  • vivek iyer

    ‘I’m obviously going to appeal to a principle of public justification,’- why? Isn’t PJ a modish availability cascade which aims at preference falsification- everybody pretending the really care deeply about stuff they have no interest in- and which would be utterly intractable if one actually tried to do a sort of general equilibrium analysis of coercion- bearing in mind that the evidence from the Sociology of violence is that most coercion is subliminal and, in any case, operates in a highly non linear way- so my question is why not just junk the notion?

    • vivek iyer

      Sorry, meant to add- in these six cases the problem arises that education isn’t about preferences but meta-preferences- what you want to want after your education is over or even while it is going on.
      I recall, I had some sort of notion that I should want to sip sherry rather than guzzle beer and want to enjoy Hegel rather than Spiderman, when I first went up and was actually quite disappointed that College did nothing to coerce me in that direction.
      The problem with meta-preferences, and the reason they vitiate things like Public Justification or Contractarian theory is that though we can say that we don’t want to be coerced away from exercising actual preferences, we may want to want to have preferences which have the perverse character of masochistically delighting in their own frustration.