Libertarians generally love FIRE, the legal group Foundation for Individual Rights in Education. But FIRE has just gotten behind a cause that may make some libertarians uncomfortable.
If you watch the embedded video (I recommend that you do so), you’ll see that Vanderbilt has imposed a new policy on student groups barring them from discriminating against anyone when it comes to group membership or holding an elected office in the group. This means, potentially, that the Campus Democrats have to admit Republicans into their meetings and that Republicans can run for their offices. Further, whites may have to be admitted to leadership roles in African American student organizations. But what it means in practice is that Campus Christian groups can’t exclude openly practicing gays from membership or elected office. I think it would be naïve to think that the university administrators at Vanderbilt are acting on any other motive than their belief in an ideal of equality of sexual orientation rejected by traditional campus Christian groups. The result? A number of student groups have had to leave campus and abandon their campus affiliations.
Just to state my moral view: I think Vanderbilt has acted in a condescending and authoritarian fashion. The generally recognized aim of the university system is not to promote a particular conception of the good or justice but instead to create an environment of learning where all sorts of ideas can be discussed openly and fairly. Now, of course, there are limits. Universities need not recognize Nazi student groups, or fund them. And universities are not morally required to allow student groups to discriminate on grounds that all widely regard as immoral, such as on the basis of race. But our society is presently deeply divided over the morality of homosexual sexual relationships and actions. To impose such restrictions on Christian student groups, then, is in effect to threaten them with dissolution due to their sincere religio-ethical convictions that homosexual sexual relationships and actions are sinful. It imposes a controversial moral view on a campus minority group.
But what about the legal question? That is, should universities be permitted by law to act in this fashion? After all, plenty of Christian universities have the right to only hire faculty members who sign a confession of faith, so why aren’t other universities similarly entitled to impose their own ideological or theological vision on the student populace, within obvious limits?*
Vanderbilt’s decision seems to generate a conflict between the freedom of association rights of students and the same rights of universities. In this case, Vanderbilt is using its right to freedom of association to limit the freedom of association of its students. A genuine right to freedom of association essentially includes the right to define membership and exclude non-members such that the student groups’ right seems clearly violated.
I’m not sure political theory can tell us how to balance these two rights (Jacob Levy is writing a book making much the same point). The answers to such questions are contextual. But I think FIRE has it right. And I’m not sure I can justify my intuition.
To get you similarly confused, consider the following cases:
Case 1: Women Priests: Vanderbilt requires the Campus Catholics to ordain female priests or strip them of university recognition and the organizational rights that come with it (use of university buildings, receipt of university funding, using university advertising services, etc.).
Case 2: Ideological Supervisors: Vanderbilt appoints a faculty to member to supervise campus political groups and ensure that their political commitments don’t become too “extreme” (read: too right-wing in various respects). Should the groups become too “extreme” they will then be disbanded.
Case 3: Newspaper Censors: Vanderbilt has the content of student newspapers reviewed by a board of campus censors to make sure the paper does not criticize the university.
Intuitions about these cases will probably vary depending on whether the university is public, private with public funding, or private without public funding. In the latter case, the liberal intuition is that the university should be given great leeway, less so for publicly funded private universities, and still less so for public universities.
But in general it seems to me that Women Priests, Ideological Supervisors and Newspaper Censors should all be banned on first amendment grounds. In general, a university’s freedom of association has limits. It is not enough to say, “Well, you can leave!” and then let universities do whatever they like. At the very least universities should not have the legal right to, say, fire junior faculty for refusing the sexual advances of senior faculty, the legal right to routinely side with men when a female student accuses a male student of sexual harassment, or the legal right to require all professors affirm Marxism as a condition of teaching in the humanities.
Now, consider three more cases that should generate the opposite intuition.
Case 4: KKK: Vanderbilt allows the campus Ku Klux Klan to stage campus cross burnings and to give public speeches denouncing racial equality.
Case 5: Fight Club: Vanderbilt allows the formation of a student group dedicated to severely violent fighting, where students are in no danger of dying but will regularly break bones and lose copious amounts of blood.
Case 6: Purity Tests: Vanderbilt allows all faculty members to give ideological purity tests as a condition of passing their classes.
It seems to me that Vanderbilt should be legally barred from allowing KKK, Fight Club and Purity Test. Each of these cases allows the violation of some legally recognized norm (non-discrimination, protection of public health and freedom of speech and opinion).
I don’t know how to draw a line between Cases 1-3 and Cases 4-6. But I assume that most of you share my intuitions. So I leave you with this question: Is Vanderbilt’s new campus policy more like the first three cases? Or the second three? As Bryan Caplan says, show your work.
*In some ways, this issue is analogous to the question of whether universities are permitted to ban handguns on campuses. Some libertarians view such bans as violations of an individual right to self-defense, whereas other libertarians, while they might be critical of such universities policy, think that the right of the university as a free association is paramount in this case. But guns raise extra issues: there are genuine worries about the extent to which the risk of violence is increased or decreased by the presence of handguns on campus. In the Vanderbilt case, matters solely concern the institutional integrity of student groups., so let us set the analogy aside.