Religious Groups Driven from Vanderbilt: A Violation or Instance of Freedom of Association?

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.

  • Thanks for bringing this up, Kevin– I’d been planning to do so but never quite got around to it.

    I come down against you and FIRE here. It is well-established that religious universities are free to not sponsor/ subsidize/ permit student groups that violate or oppose their doctrinal commitments: pro-choice groups or LGB groups or so on. It seems to me that that’s the right model. Private universities are allowed to be distinctive; freedom of association protects their ability to have commitments of their own. Their subsidized domestic associational spheres aren’t just the same as the associational sphere of the general civil society; they’re university creations cultivated for university purposes about student life and the student experience.

    You import criteria from other areas of law in here in a question-begging way. To say that (e.g.) “Women Priests should be banned on First Amendment grounds” makes no sense unless Vanderbilt is basically a state actor (private associations are simply not governed by the First Amendment in their internal affairs, though they may be governed by, e.g., statutes forbidding discrimination on the grounds of religion). Should Bob Jones University or Brigham Young University or Yeshiva University be forbidden on First Amendment grounds to disallow Campus Catholics altogether?

    • (a) On what grounds would you rule out Cases 4, 5 and 6?

      (b) I wasn’t aware that First Amendment jurisprudence *never* not applies to restrictions imposed by private universities that do not have specifically religious charters (like the three universities you mention). Why would FIRE think they have a case otherwise?

      • AFAIK FIRE isn’t treating this as a potential court case. There’s a move for legislation from the Tennessee legislature, and whether or not that goes anywhere FIRE is willing to make a cause celebre out of it. But I’ve seen no indication that litigation is planned. It’s very clear that the First Amendment doesn’t directly govern private universities, religious or otherwise, in their internal affairs; they may, for example, have hate speech codes of a sort that would be unconstitutional in a public university.

        Similarly, the 14th Amendment doesn’t directly compel private universities to refrain from discrimination, even if they accept federal funds. That takes affirmative legislation, such as Title IX.

        • Kevin Vallier

          So FIRE is just “fanning the flames” (can’t resist the pun)? For publicity or to garner support for other legal causes? Maybe you’re right, but it seems odd for a legal body to produce a documentary complaining about a policy that they simply disapprove of.

          And my question about cases 4, 5 and 6 still stands. I’m simply looking for the *simple* admission that the “thick” overarching association can be justly limited in its activities. I’m certain you agree with the point in principle. The point of my post was to try to bring out the principles or set of values that would lead one to draw a particular line. I’d be curious as to how you would do so.

    • I agree with you Jacob. And in response to Kevin V’s follow on, I don’t think 4-6 are distinguishable. What should happen here is that the university should have an explicit policy in place when a student is admitted. The student has then chosen to accept that policy. I’m for some basic consumer protection doctrine where the student has some redress for breach of contract if the policy changes during his 4 years (there is an unwaivable warranty). The university can change the policy by notifying incoming students of the impending change and then waiting 4 years to activate it.

  • Anonymous

    Isn’t the standard libertarian reply to such cases: “It’s a private institution, no one should question if it’s being oppressive. I you don’t like it go somewhere else”?

    • That is the *standard* libertarian reply, but universities are not purely private institutions on a number of grounds. Perhaps they *should* be but presently few truly are.

      • Anonymous

        Thank you for your reply.

      • I would hope that this is *not* the standard libertarian reply. Libertarians aren’t committed to “not questioning” acts of private oppression. Libertarians can, consistent with their beliefs, condemn them, avoid them, encourage others to avoid them, organize protests, boycotts, argue against them publicly, etc. At most (for, surely, it depends at least on the character of the oppression) we’re committed to refraining from using private or public force to impose our will on the institution. But that surely doesn’t mean we have to like it.

        • I thought Anonymous meant that the institution has not violated any rights, not that it couldn’t oppress in an immoral fashion. Unfortunately, I think this reply is still standard in the sense of being the reply you’d get from most self-identifying libertarians.

  • Sean II

    Hey, when I went to college in the early 90s, my exams WERE ideological purity tests.

    I don’t understand how you can say this: “…universities are not morally required to allow student groups to discriminate on grounds that are widely regarded as immoral, such as on the basis of race.”

    Why is race a magic category, where gender, religion, sexual orientation, and ideology are not? Why is it significant for something to be “widely regarded as immoral” at one particular moment in history? Why is it a question of relative numbers? How many more adherents would racism need to pick up, before it too could qualify as a fascinating hard case?

    Students either have freedom of association or they don’t. If they do, they must have the right to exclude people on grounds that will seem hideously arbitrary to someone, somewhere, somehow.

    This sends a remarkably confusing message: “If you have a really bad idea, like Mormonism, don’t worry! Lots of people currently agree with this bad idea, so you qualify for the right to associate, and even the right to exclude. But don’t go messing around with the really unpopular bad ideas, such as racism, because those are just way creepy and, like, WTF! Join one of those groups and your rights disappear.”

    What about people like me who a) don’t much care about what is “widely regarded as immoral”, and b) are EQUALLY OFFENDED by everything they find to be stupid and harmful, including Mormonism, racism, socialism, etc.

  • Incidentally, your resistance to this: “the legal right to require all professors affirm Marxism as a condition of teaching in the humanities” is also going to run directly afoul-by-analogy of practice at many religious colleges.

    • I pointed out the intuitions vary by the degree to which a university is publicly funded. Do you disagree?

      • Like (I think) most libertarians, I’m worried by the
        Grove City College v. Bell/ South Dakota v Dole principle, and you’re going farther than that, saying not only that the receipt of public funding permits the state to impose on private associations the rules that govern public associations, but that such receipt requires the state to do so. I’d be very surprised if you applied the same rule to, say, Catholic hospitals that accept Medicaid and Medicare patients.

        • I think we’re dealing with matters of degree here, which was precisely my point in the blog post. I don’t think public funding subjects a private institution to “any* restrictions on public associations. Consider religious charities: they receive public money on the conditions that they do not proselytize with it, but they can still restrict members in various ways. I’m fine with that. But you’re right that I wouldn’t accept the same rule as it applies to Catholic hospitals. The very point of the post was to ask people for principles to help sort these cases out.

  • Matt Pierce

    I often had difficulty, in watching the FIRE video, understanding which side of the debate the interviewees were taking, on their arguments alone. That is because the argument for fostering discourse among people with different beliefs can be used equally on both sides: on the one side to promote discourse among different groups, and on the other side to promote discourse among different members of a single group.
    Putting aside the constitutional distinction between a private and public university, I think the moral obligations of a university are to promote as much open dialogue as possible, and to expose students to a range of diverse beliefs, so as to have their own beliefs challenged in a tolerant yet critical way. I think that students are more likely to engage in such discourse within groups rather than across them, so I think that Vanderbilt has the right idea here. That said, I think some flexibility is needed to allow these groups to exclude members whose intentions are obviously to effect a “hostile takeover”; that is, I draw a distinction between members who hold different beliefs and simply wish to engage in healthy debate about those beliefs (operating within the group’s agenda), and members who join in order simply to hijack the group’s very existence. In other words, a group should be able to enforce a modicum of tolerance for that group’s basic tenets, but not to use exclusions as a tool to censor any views which challenge those tenets.
    This is not an easy line to draw, particularly in the case of religious groups. But this exposes the larger problem I see, which is the inherent clash between the faith-based, dogmatic tenets of many religious groups and the debate-based, critical tenets that should be essential to academic institutions.

    • Matt Pierce

      To clarify my last point, I think the relationship between, say, a homosexual and a Christian group that rejects homosexuality is a microcosm of the relationship between a faith-based religious group and a university which rejects dogmatism. If an institution based on open debate allows active participation of diverse groups representing a virtually unlimited range of beliefs, should a group’s membership of that institution not at least carry the minimum condition that the group is itself tolerant of a wide range of beliefs among its own members?

  • Dan

    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

    Presumably you’d be OK with each of the above (in the sense of thinking they should not be legally prohibited whether or not you approve) if the institutions in question were the KKK, the UFC, and some hypothetical organization dedicated to accrediting the ideologically pure, right?

  • TracyW

    If you don’t allow case 5, the fight club, how on earth are you a libertarian, at all? Support for a Fight Club, or any other right of people to do bloody stupid things that only hurts themselves, at least where they run a relatively low risk of death, strikes me as being a fundamental libertarian position. (Note, I haven’t seen the movie Fight Club, perhaps this is meant to draw some associations I’m missing out on.)

    In particular, I think you just lost your right to be a bleeding libertarian. 🙂

    • Honestly, I don’t understand. You don’t count as a libertarian if you think that a society’s political institutions occasionally have the authority to regulate the practices of publicly funded, though private institutions?

      • TracyW

        Maybe I misread you. When you said “It seems to me that Vanderbilt should be legally barred from allowing KKK, Fight Club and Purity Test”
        I thought you were asserting that a society’s political institutions should forbid a university from permitting a Fight Club.

        Saying that a publicly-funded institution “should be legally barred from allowing…” strikes me as going further than saying that a political institution occasionally having “the authority to regulate the practices of…”. Having grown up and lived nearly my entire adult life under an unwritten constitution, I see a big difference between an institution having a right to do something, versus an obligation to do so.
        Anyway, even taking the less restrictive view, that a society occasionally has the authority to regulate the practices of publicly funded institutions, I don’t think that this is a case where it should regulate. People should be free to pursue their idea of a good life, even if they do something the majority disagrees with, even if they threaten their own health. After all, virtually everything we do can affect our health, if someone’s own health is a sufficient reason to regulate our lives can be regulated minutely.

  • This story is triply interesting to me, as a Vandy alum, gay man, and orthodox Rawlsian “political liberal.”

    I just want to point out what seems to be a problem with your argument. On any conception of justice that is “political” in the Rawlsian sense, nothing follows from the empirical fact that a given issue happens to be controversial in a particular society. I wouldn’t deny that “our society is presently deeply divided over the morality of homosexual sexual relationships and actions.” But that alone doesn’t tell you whether that disagreement is “reasonable.”

    It has to be the case that a political conception of justice defines what counts as “reasonable disagreement,” not that what is (empirically) disagreed-about constrains what can go into a reasonable conception of justice. If we go the other way, where anything that is empirically the subject of disagreement constrains what can go into a conception of justice, then (a) nothing could go into the content of a conception of justice, since (at least in a society as large and diverse as ours) literally EVERYTHING is the subject of reasonable disagreement, but more importantly (b) it would make a conception of justice a mere empirical statement of what is in fact accepted in our society, rather than a normative view. It would make a conception of justice “political” in the wrong way, to use Rawls’s phrase.

    So anyway, your seem to think that the reason Vandy can ban the KKK but not anti-gay groups is just that racism is uncontroversially wrong but anti-gay bigotry (I hate the word “homophobia”) is not. First of all, as an empirical fact, that’s false. Having spent 4 years in Nashville I can tell you that racism is very much alive and well in the South, even on the Vandy campus. (While I was there, in the early aughts, I knew white Vandy students who used–not mentioned, but used–the n-word. No kidding.). But even if it were empirically the case that one was controversial and the other was not, that can’t be the reason why one is reasonably prohibited and the other not. It has to be a moral commitment on the part of the university to the basic equality of all students and thus to the idea that officially recognized student groups (which, it should be said, receive money and other resources from the university) must also affirm the basic equality of all students.

    We can disagree about what goes into the “basic equality of students”–whether that includes sexual orientation or not–but that’s going to be a moral argument, not an argument about what people generally regard as part of basic equalty.

    • Chad, oh how eager I am to talk in political liberal terms! Seriously!

      I assume, since Rawls says that basically all of the major religious traditions can be reasonably affirmed, and that the Catholic view on abortion in the second two trimesters can be reasonably affirmed, that the morality of homosexual relationships and sex acts is reasonably disputable. Now you may want to disagree with Rawls on this, but given our (yours and my) commitments as political liberals to the recognition of reasonable pluralism, I cannot see a plausible alternative.

      I think while racism is still prevalent, it is not one that people are willing to sincerely morally defend. That is, their endorsement of racism is not qua their conception of the good or justice, the source of substantive claims of freedom of conscience and association on a political liberal view. This stands in stark contrast to the morality of homosexual relationships and sexual acts, which nearly all major religious traditions’ dominant sects have condemned. So it seems to me that based on a reasonable, sincere religious conception of the good, one can object to the morality of homosexual relationships and sexual acts, so much so in fact that they have a defeater for coercive policies imposed by universities to allow openly practicing homosexual students into your religious organization, especially when the university’s charter itself is not clearly rooted in the promotion of a reasonable comprehensive doctrine.

      • We need to distinguish here, I think, between the “reasonableness” of the view that homosexuality is immoral and the reasonableness of the view that, because homosexuality is immoral, homosexuals should not enjoy the same basic rights, liberties and opportunities that heterosexuals do.

        The reasonableness (in Rawls’s sense) of the former view I would grant you. It cannot be a condition for membership in an overlapping consensus on a reasonable political conception of justice that everyone affirm the morality of something that (as you rightly point out) almost all major religious traditions condemn.

        But the reasonableness of the latter view, I think, Rawls has to deny. I think he has to say that, if it is your view that sodomy should be a crime or that homosexuals should not be allowed to hold public office (or get married?), your view is to that extent unreasonable. The reason, again, is that it cannot be the case that the content of a conception of justice is hostage to whatever members of a particular society happen to agree upon. What is the subject of reasonable disagreement has to be defined by a conception of justice; not vice versa. And it’s hard to see how Rawls’s view could fail to lead to the conclusion that gays (like blacks, women, Jews, etc) deserve the same rights and opportunities as all other citizens.

        Thus we could distinguish between reasonable and unreasonable versions of the same religious doctrine. An unreasonable Catholic is one who holds that temporal and spiritual power both come from God via Rome, that apostasy should be a crime, that non-Catholics should not enjoy the same liberties as Catholics, and so on. A reasonable Catholic, on the other hand, accepts the burdens of judgment etc and is prepared to endorse a liberal political conception of justice according to which temporal power comes from the agreement of citizens as free and equal. Thus she affirms the political equality of non-Catholics (yes, even the gay ones) even while she may regard them privately as deeply immoral and perhaps eternally damned. (Whether such an attitude is psychologically possible is an interesting question, but it seems to me that it’s the only way a Catholic can be “reasonable” in the Rawlsian sense)

        Anyway, with that in mind, it seems to me that there’s a huge difference between telling Vanderbilt students that they cannot disagree about the morality of homosexuality versus telling Vanderbilt students that they cannot make it a condition of membership in an official, university-recognized, university-supported student group that one have a heterosexual orientation.

        As far as I’m aware, nobody is saying that Vandy students can’t regard homosexuality as immoral, or express (in a civil fashion) the view that homosexuality is immoral, or associate with other students who regard homosexuality as immoral, or even join off-campus groups committed to the idea that homosexuality is immoral. If anyone *is* saying that, I would be the first to condemn it!

        All that is being said (again, as far as I’m aware) is that if your student group is to enjoy recognition and support from the university it cannot discriminate on the basis of sexual orientation. What’s unreasonable about that?

        • I think the thought is that because a reasonable Catholic can reject the morality of homosexual relationships and sex acts, that she has a kind of claim on her society to be able to freely associate with people who believe similarly, and this fact should factor in a big way into the sort of freedom of association rights embodied in a society’s basic structure. Now, does that entail that Vanderbilt made the wrong decision? No. But the Rawlsian system strongly suggests that the use of coercion to prevent student groups from acting in this way is quite hard to justify.

          • Not as hard to justify as the alternative, a right to exclude gays from groups that are funded through their own tuition dollars!

          • Not as hard to justify, perhaps, as excluding gays from student groups funded by their own tuition dollars!

          • Hmm, this says @ Kevin but it should say @Chad.

            “Thus she affirms the political equality of non-Catholics (yes, even the gay ones) even while she may regard them privately as deeply immoral and perhaps eternally damned. (Whether such an attitude is psychologically possible is an interesting question, but it seems to me that it’s the only way a Catholic can be “reasonable” in the Rawlsian sense)”

            How can Rawls accept the reasonability of holding these moral beliefs but not the reasonability of acting upon them? Once held, these beliefs demand action.

            Sounds to me like a Rawlsian should just drop the facade of claiming that holding these beliefs can be reasonable, and straight up call them unreasonable and explain why. Yes, I understand that starts the kind of fighting that Rawls wants to avoid, but seriously, this is just silly.

          • Well I dunno, is it that crazy? Gay marriage is controversial, sure, but all but the nuttiest of religious nutjobs affirm that gays should be allowed to vote, hold public office, and in general enjoy all the other (non-marital) rights and liberties that straight people do. Or for that matter, any religious person believes that theirs is the one true path, but almost none of them propose making membership in their religion a necessary condition for being an equal member of political society.

          • “Gay marriage is controversial, sure”

            ….you can’t address the elephant in the room by saying, “well, ok, sure, besides the elephant in the room….”

            Gay marriage is exactly the sort of thing I am talking about. And military service. And adoption….

            Edit- and I honestly do believe that if you asked them behind closed doors, plenty of christian folks would say that they do not believe it should be allowable for a gay man to be, say, president of the united states.

          • Wouldn’t vote for him, or don’t think he should be allowed to run for the office?

            I guess the point I was trying to make is just that while there’s disagreement at the margins, most people accept some version of the idea that regardless of race or creed, everyone should be equal before the law. Even the most devout Christian doesn’t think Jews should be denied the vote. So it’s not a psychologically incoherent position, which is what I thought you were asking me about.

            If you’re asking about why Rawls adopts this tortured position, why he doesn’t just come out and say “it’s unreasonable to think homosexuality is immoral,” presumably it’s just because he doesn’t have to. It’s unreasonable to think homosexuals shouldn’t enjoy the same rights as heterosexuals (or Jews shouldn’t enjoy the same rights as Catholics, or blacks enjoy the same rights as white). For Rawls’s purposes, it doesn’t matter what else you think about homosexuals (or Jews, or blacks). If it doesn’t touch on the contents of the public political conception of justice, then he doesn’t have to take a position on it, so why take on the extra controversy?

          • These religious folks think that gay people should be denied rights due to their homosexuality. They think the government should affirmatively act to deny them these rights. Examples of these rights include things like gay marriage and adoption.

            So what I am saying is that I can affirmatively state that many, many (not merely at the fringes) christians desire to take actions that do, in fact “touch on the public political conception of justice”.

            You can disagree that using the law to forbid these things counts as an issue that touches on the public conception of justice, or you can state that actually, only a fringe believes these things. For my part, I think the reality of these claims is such that the Rawlsian needs to tell the Christian “It is okay to believe these things privately, that is reasonable, but you may not attempt to enact them. That is not reasonable.” And that is what I find to be ridiculous.
            The idea seems to be that a christian could believe, for example, that having a child raised by a gay couple would be a horrible, scarring fate, and it would be perfectly fine to believe this, but once he starts calling his congressman, that’s out of line. I believe an honest christian would probably consider such an adoption to essentially embody child abuse. How can they stand idly by?

            “You know how you sincerely believe your neighbors are abusing their child? Well, it’s fine to think that, but you can’t bust in to save her, and not only will we do nothing, how dare you even conceive of asking us?”

            I do not agree with that assessment, obviously (I hope), but I think the center cannot hold, here. You can’t validate religion as a moral structure but then deny the ability to act on that morality.

          • Not to be glib, but we deny the right to burn heretics and that’s worked out just fine. Time was, it was unthinkable to a Catholic even to live in the same community with a protestant–conversion or extermination were the only options. Now it’s commonplace for Catholics and protestants to tolerate, even accept each other, despite the fact that it is an implication of each of their views that the other is a dangerous heresy. I suppose religious toleration is different from the toleration of diverse sexual orientations, but it’s not obvious why it should be harder in that case to separate one’s private moral views from one’s public political stance.

        • DavidCheatham

          As far as I’m aware, nobody is saying that Vandy students can’t regard homosexuality as immoral, or express (in a civil fashion) the view that homosexuality is immoral, or associate with other students who regard homosexuality as immoral, or even join off-campus groups committed to the idea that homosexuality is immoral.

          I’m not even seeing anyone say Vandy students can’t start an _on-campus_ group based on the idea that homosexuality is immoral.

          They just _can’t keep out people who disagree_ from their on-campus group, nor can they keep those people from running for office and being elected and changing the message of ‘their’ group. (1)

          Because it is not, in fact, ‘their’ group, it’s a Vandy student group. If _they_ want to own a group, then they should start a group outside the control of Vanderbilt, not a Vanderbilt student group.

          1) Of course, we have no instances of this happening, and I suspect what the ‘actual’ problem is that various religious and political groups realize they can’t keep faking local control while actually being puppets of some outside group…at some point, the members, if given open membership and free vote, will revolt and ‘hijack’ the group. (Which is less a ‘hijack’ and more ‘the rightful pilots stopping a hijacking already in progress’.)

      • Also, I fail to see how Vanderbilt’s policy is “coercive.” There’s a difference between a “group of students” and an official “student group.” Vanderbilt isn’t saying that groups of students can’t do what they want. They’re saying that official student groups–which, again, receive many benefits from the university, including money–cannot exclude gays. Official student groups that previously excluded gays risk losing benefits they previously received ($$, use of campus space, publicity) unless they modify their policies, but that’s not the same as being coerced unless you suppose they have a right to those benefits, and it’s hard to see how they do.

        • OK, now we’re on the key issue. It seems to me that on any standard conception of coercion, Vanderbilt acts coercively: “Allow students practicing homosexual sexual acts into your organization or leave or lose benefits/recognition.” Such coercion may be permissible, but its still coercion, no?

          • Do I coerce you if I stop letting your libertarian reading group meet in my basement after converting to Marxism?

          • good_in_theory

            But this is easy enough to turn on its head. One could just as easily say, “Allow students practicing homosexual sexual acts into your organization or do not receive benefits/recognition.” And that just looks like a voluntary exchange, on most readings.

            In fact, student groups must renew their status annually, according to Vanderbilt’s guidelines, so that may very well be the legally appropriate way to describe what occurred. With annual renewal, you can’t really grandfather in exclusionary membership. And while there may very well be a disparate impact, the standard is fairly applied across groups.

  • TracyW

    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.

    What does this imply for what universities would be morally required to do back when homosexuality was widely regarded as immoral, say if a student group aimed to advocate for the legalisation of homosexuality, spread information about the mental healthiness of homosexuals, etc?

    the legal right to require all professors affirm Marxism as a condition of teaching in the humanities

    Why not? The university presumably has the legal right to, say, require all professors to affirm evolution as a condition of teaching in the sciences. (Note, legal right is not the same as “good idea”, or “immune from criticism for exercising”.)

    • martinbrock

      I agree. A university ought to have a right to affirm Marxism. I wouldn’t waste my time at this university, but so what?

  • Richard

    I think one’s perspective is colored by one’s implicit view of the role of Vanderbilt in society. Is it solely an educational institution? If so, university-supported (in any meaningful sense) student groups are ALL extraneous to that goal. If, however, you view Vanderbilt as a “half-way house” between childhood and adulthood, between dependence on parents and full participation in society, arguably student groups serve a useful function.

    That said, if this is one’s view, it seems counter-productive to limit student groups to those that meet a narrow definition that is foreign in larger society. If a set of students self-select to become “friends” in some context due to some shared attribute, prohibition of the friendships should be prohibited. That said, support of “approved” friendships should also be outside the purview of the school. If there’s an “all comers” policy, it should be applied TO the school itself, not to the groups.
    That is, the school should not say “your association with people who believe the same as you” is either good or bad per se, regardless of what the shared belief is. Peers – fellow students – society – will provide the appropriate feedback on that score and we simply do not need adults prejudging our choices. Stimulating discussion of them is fair game… that’s part of providing a “safe place” to discuss ‘radical’ ideas. But prohibiting them in advance only forces those friendships underground and prevents friends from being openly – and safely – having their choices questioned, hopefully honestly, sincerely, and seriously.

  • Thanks for this post, Kevin.

    Legal matters aside, I think there is a moral/institutional norm that obliges universities to accord wide range to associate freely for intellectual purposes, and that “intellectual purposes” ought to be very broadly construed. This entails that groups ought to be able to exclude others on belief-based grounds. Fostering a vibrant intellectual marketplace among students is part of the way that universities can fulfill their educational purpose.

    For me, 4 is ruled out not because the KKK is a racist organization, but because it is an organization with ties to violent, intimidating, and unlawful action. A group that was racist but which lacked such ties would, I think probably be the sort of thing that a university ought to tolerate: e.g., a group that was interested in studying and promoting the idea of holocaust revisionism, or of “scientific” theories of racial superiority and inferiority. 5 is ruled out on paternalistic considerations combined with a lack of connection to the intellectual mission of the university. And 6 is ruled out for an obvious conflict with that mission.

    I’m much less certain about how any of this should be reflected in the law. Like Jacob, I’m inclined to think that private universities, even those that receive substantial federal funds, ought to be largely free to support student freedom of association or not as they see fit. I might think differently if I was convinced that potential university students faced a lack of acceptable options because policies like Vanderbilt’s had become very widespread, but I’d need to think through those issues more carefully before committing to anything.

    • OK, so lets focus on the legal issue. Surely there should be legal limits on university rights to limit student organizing in this regard. Suppose a university simply decided to ban all Christian organizations and no other organizations of any other kind. It is clear from the background and public statements of university administrators that the ban is due to nothing other than a distaste and hatred of the Christian religion. That’s it. Christian student organizations should have no legal recourse in that case?

      • I guess I’m inclined to say that they should not, though hopefully they would have plenty of non-legal recourse.

        • Huh. Not sure what to say at this point. I thought you’d obviously agree!

          • Just to be clear – we’re talking about a private university?

          • I suppose my intuitions differ if I consider a *purely* private university, one with no special tax status recognized by the government, no government funding, not publicly recognized charter, nothing. In that case, then I suppose my intuitions go with you. But as you start to peel off those conditions, at some point my intuitions change, and they change earlier than yours do.

          • “No publicly recognized charter?” That’s the approximate equivalent of saying “because your land title is registered with the county clerk, what you do with your property is state action regulatable by the Fourteenth Amendment”– or, for that matter, “because you have a birth certificate and a passport, you are a state actor and you are bound in your personal conduct by the rules of liberal neutrality.” That way lies incoherence very, very rapidly.

          • Kevin Vallier

            I thought my point was pretty clearly illustrating what I said in the post, namely that there seems to be a spectrum between private and public, rather than a clear line, and so my examples were merely illustrations moving from the public to the private. Having a public charter is a *very* small step from private to public and my intuitions don’t hang on that alone.

        • I agree with Matt– though I also think the Vanderbilt policy is clearly distinguishable. Kevin, if you don’t agree, then are you willing to keep following the Russian dolls down and say that the Catholic student group may not have an internal rule against the formation of a pro-choice caucus within it, on the simple grounds of disagreement?

          Someone has to have the freedom to form a thick association that has a conception of the good– in Oakeshottian terms an enterprise association rather than a civic association– and in so doing to restrict sub-groups within it. With universities as with churches and the Boy Scouts I think that right normally vests in the top-level private association that encompasses the internal associational sphere.

          (This also entails, by the way, that private universities are free to forbid a military presence on campus, whether as ROTC, or as recruiters.)

    • Matt Pierce

      In response to your first paragraph, I agree with everything except “This entails that groups ought to be able to exclude others on belief-based grounds.” I don’t think it follows that a “vibrant intellectual marketplace” is fostered by allowing student groups to make like-mindedness a condition of membership. If the effect of a policy like Vanderbilt’s is to have campus groups leave because of the threat of having to admit members who may call their basic beliefs into question, then I am not sure these are the types of groups a university should be supporting in the first place.

      • I agree that there would be something troubling about a group that never wanted to talk to outsiders. But that’s different from accepting them them as full members of one’s organization, with all the rights and privileges thereof. Suppose the college libertarians, a relatively small group, was forced to admit Republicans as full voting members. The admitted Republicans then elect a Republican president of the club, which then runs events like “Libertarians for Mitt Romney” etc, using funds the organization had raised from donors, external grants, etc. The president speaks to college newspapers and gives the “Libertarian (i.e. Republican) view on various issues…Isn’t there something troubling about all this?

        • Matt Pierce

          Yes and no. If there was clear intent that different-minded members had joined the group with the sole purpose of undermining it, then I would expect that the university would retain the discretion (and perhaps the obligation) to intervene. But I think a university ought to be reluctant to intervene except in obvious cases.
          To take your example, presumably there would be nothing to prevent a group of Republicans from just as easily starting their own club and purporting to fly the libertarian banner on behalf of that club. I see nothing troubling about allowing that to happen, in that a vibrant intellectual marketplace should ultimately expose it for what it is. The marketplace of ideas will largely self-regulate, but it is up to the university to create the optimal conditions for that marketplace to flourish.
          I admit it is a balancing act in weighing the fostering of dissent against the deliberate sabotage of group aims. But I believe that a university’s institutional responsibilities are best met by facilitating intra-group debate, rather than letting each group operate within its own silo of beliefs.

    • “Like Jacob, I’m inclined to think that private universities, even those
      that receive substantial federal funds, ought to be largely free to
      support student freedom of association or not as they see fit.”

      Then realize that there is no way to justify public universities or public funding of private universities. So government should get out of education entirely and the universities should be entirely free to make policies as they see fit.

  • martinbrock

    Yes, it is not enough to say, “Well, you can leave!” and then let universities do whatever they like. College students have thousands of options in the United States. Nashville alone has 21 accredited colleges and universities.

    I don’t like the poilcy. If I were a Vanderbilt student, I might transfer. On the other hand, who cares? I don’t need to sit in a room in one of Vanderbilt’s buildings under a sign reading “Vanderbilt XXX Society” in order to associate. If the Vanderbilt administration expects to affect their students’ freedom to associate this way, they’re incredibly stupid as well as ideologically fanatical and authoritarian.

    • That is my conclusion. Vanderbilt has the right to institute this stupid policy but it makes them out to be the opposite of what they are aiming for, They are the intolerant. And that makes them a poor university because the very idea of a university is the totality of thoughts and ideas.

  • DavidCheatham

    I think everyone is missing the point that we are talking about _student groups_.

    The purpose of a student group at a university is that a collection of students come together for some purpose, and the university allows them to use resources of the university in meeting and whatnot.

    I think it is entirely reasonable for a university to say ‘And such groups must be open to all students, and shall have elections open to all members’. The entire purpose of student group is not to ‘promote’ things or accomplish some outside goal. The purpose of student groups is…a club that students can join.

    And ‘hijacking’ is a bit of a red herring. Because these groups are not some sort of independent things…they are simply clubs that the _university_ has. If someone hijacks the hiking club to start ranting about political issues…simply leave that group and make another hiking group.

    If people wish to make a group that is not open to all students, they should just…make one. It’s pretty easy to start an organization, either an official non-profit or unofficial group. And the university should allow that organization to rent space or whatever, and not restrict them in any way…but this is _not_ the same thing as a _student group_.

    No group of people at a university I’m attending and paying student fees towards has a ‘right’ to say ‘We have created a university-supported group and exclude you from it’.

    Most of the problem here, and in schools in general, seems to be people misusing ‘student groups’. Those should be for things like a chess club or hiking club or whatever, things that students join based on their interest, not ‘The Democratic Party’s arm at the college’ or ‘The FCA’.

    Student groups should not be running around trying to promote things to people outside the groups. And people should not be misusing them like they currently are. Student groups are just supposed to be a way for educational institutions to offload ‘doing activities’ to people with specific areas of interest to do it, and pay for it, themselves.

    Pay $20 a year to the computer club, go to meetings, elect people, schedule a lan party or two, with refreshments provided by the dues, and the facilities provided by the university. That is what student groups are _supposed_ to be.

  • I am concerned by both the “widely regarded as immoral” and “violent” standards. When politicians propose laws criminalizing an entire group of people, and say they would kill these people on sight, their policies are violence, and their statements show how much the public accepts and applauds violence against that group. In this case, I’m thinking of Rep. Floyd’s policies and statements about trans people.

    When a core part of who you are is “widely regarded as immoral,” and you have been called an “abomination” or a “parasitic wasp,” and you have been bashed, it is violence, and it is appropriate, no, it is necessary, for anyone seeking human freedom to take a stand against that violence, to call it out for what it is, and to change society so we are no longer “widely regarded as immoral.”

  • Wow, didn’t realize that vandy was such a hotbed of fascism.

  • good_in_theory

    The video and the post seem to obfuscate what is actually occurring here rather greatly.

    As far as I can tell, this is what Vanderbilt is requiring of school supported student groups:

    Open membership
    Democratically elected leadership
    Open candidacy for elected office among the membership

    …in order to be a student group under the school’s imprimatur.

    The claim is that this is somehow driving religious groups off campus.

    Presumably the idea is that if I start a “Gays are icky” group, a bunch of gay people will stage a hostile democratic take over of my student group by some sort of scalawaggery.

    Or the president of the Libertarian club might convert to Marxism and refuse to step down. In which case the solution is… having impeachment procedures, or exercising one’s membership rights as per Roberts Rules of Order to regain control from an obstreperous executive.

    These fears strike me as ridiculous, and the supposition that a democratically organized group could not deal with these fears if they arose strikes me as naively ignorant.

    Even if it isn’t ridiculous, I really don’t see what the big deal is in ‘forcing’ student groups that refuse to have open membership or open elections to incorporate outside of the school’s imprimatur.

    The opposing argument seems to be that Vanderbilt should endorse explicitly undemocratic institutional structures among student groups – student groups where the authority figures who found a group have the power to enfranchise or disenfranchise whomever they like in order to control who leads the group, or, if they so desire, need enfranchise no one and simply rule by personal appointment and ordained succession. Why, exactly, is Vanderbildt expected to extend institutional resources and institutional credibility to petty tyrants?

    If the fear is strategic dissolution of student groups by roving bands of rogue members, then perhaps Vanderbildt should be pressured to permit minimum attendance requirements at open, noticed meetings (in conformity with some sort of sunshine provision) as a condition of membership and minimum tenure requirements as a condition of candidacy. Actual liberal democracies have had this problem solved for a while now.

    Other than that what is the problem? The “Southern Baptist Student Union” or whatever, will have to reckon with the fact that there are gay Southern Baptists who disagree with their interpretation of scripture if they want to set up a school-supported website and message list or receive school funding for student groups?

    That the interpretation of what it means to be a “Southern Baptist” student group might not just be the purview of the incumbents in power? Poor babies.

    Or maybe they’ll have to explicitly discourage gays from joining their organization by wearing their bigotry proudly in their name? (“The Union Of Southern Baptists Who Just Really Hate Homosexuals, So You Better Stay Away, F*****s”, or maybe, “The Union of Christians Who Love their Neighbors and Hate the Sin but not the Sinner so long as the Neighborhood Sinner isn’t a Queer,” perhaps?)

    I’m sure things will quickly dissolve into a paranoid fantasy land where the college democrats spend all their energy infiltrating and taking over the college republicans, and the college republicans spend all their time and energy infiltrating and taking over the college democrats, such that the college republicans are actually the college democrats and vice versa. And of course the Campus Crusade for Christ will be run by the old leadership of the GLBTQ Alliance. Because if there’s anything college students love, it’s wasting their time trying to plan and then jerry-rig student-group elections.

    But the baby-faced president of Vanderbilt’s college democrats thinks this is all “plausible”, so it must be a *matter of serious concern*, *of great and serious import*, and *a grave threat to the very foundations of our freedom of democratic association*. Maybe the President of the college democrats needs to learn how actual democratic association works.

    • That was awesome

    • good_in_theory

      More simply, if a religious or political group does not want to run the risk of the uninitiated contaminating their message, then they should associate under the imprimatur of the religious or political group to which they belong, not the university.

      Being the College Democrats at Vanderbilt is different from being the Vanderbilt College Democrats. The Vanderbilt College Democrats may become overrun by rogue republican students with malicious designs. The College Democrats at Vanderbilt can let their local, state, or national organization boss them around however they want.

      • good_in_theory

        To develop this a little more, if one wants to maintain party purity, then the National Organization of College Democrats can bestow or revoke its imprimatur from local college groups, and the Catholic Church can do the same to college Catholics. There is no need to sacrifice the University’s commitment to democratic association for the sake of the purity of the national brand-name. The Greek system already figured this out, and regularly revokes or extends its support to local chapters, but then maybe the Hellenic societies are simply much more conscious of their own implicit top-down authoritarianism (I would have expected the religious, at least, to have known better).

        Nothing stops me from going to the college office right now and filling out paperwork to start “The College Republicans at Generic U”, the “Generic U College Republicans”, and the “Republican Generic U Mascots”, sowing all sorts of confusion and discord, apparently, about what republicans at “Generic U” really believe. This would certainly be much easier than taking over “Generic U Mascot Republicans” (their present title) through abuse of open membership and open election requirements.

        So, clearly, in order to protect freedom of association, we should highly regulate and control the formation of student groups, to ensure that such deception and confusion is not propagated by nefarious, undesirable elements out to besmirch the reputation of *real” Christians, Democrats, Homosexuals, Women, Muslims, Jews, &etc.

    • DavidCheatham

      You said what I was trying to say much better than me.

      There are specific rules for being a university-sponsored group. As far as I can tell, these rules are _very_ lax. They seem to allow groups with any purpose and goals at all.

      Here’s the info on the Vanderbilt website. (They assert the policy has always been there, it’s just no one followed it until recently.) :

      It has been, and remains, an “all comers” policy, under which all students are presumed to be eligible for membership in registered student organizations (“RSO”) and all members of RSOs in good standing are eligible to compete for leadership positions.

      To be a ‘student’ group, you have to, tada, be open to all students. And they have to follow the basic rules of organizations, which is ‘The members control them.’ (Via bylaws and the rules of order.)

      If you do not wish to be open to all students, if you are not providing a _public good_ for the students there, Vanderbilt will not let you use the facilities for free.

      If the fear is strategic dissolution of student groups by roving bands of rogue members, then perhaps Vanderbildt should be pressured to permit minimum attendance requirements at open, noticed meetings (in conformity with some sort of sunshine provision) as a condition of membership and minimum tenure requirements as a condition of candidacy.

      Actually, I don’t see anything in the policy that would ban either of those.

      All students have to be eligible for membership, but it would appear entirely permissible to say ‘You must attend three meetings to _become_ a member’. Just like presumably almost all organizations have ‘You must pay dues to become a member’.

      Likewise, while ‘good standing’ _normally_ applies to dues, it actually can apply to any sort of duties the organization requires of a member. Including meeting attendance. (Please note by ‘duties’ I mean ‘actual prescribed actions member must do’. It can’t be something like _refraining_ from an action, and it’s rather dubious to make it something that happens outside the group. Conduct unbecoming a member is an entirely separate thing.)

      So groups can simply say in the bylaws ‘To become a voting member you must attend three meetings. To be considered a member in good standing and eligible for office, a member must attend a total of ten meetings and pay dues to be set by the membership.’

      So the video is _impossibly_ stupid. Based on what the policy appears to actually be as stated in the video, everything they _say_ about the policy is just utterly wrong, with several blatant lies. A group could, indeed, ask that their leaders do a specific thing like ‘lead a Christian lifestyle’, and remove them if they don’t. What they can’t do is keep out _members_ who do not do that, and they can’t _stop_ members who do not do that from being elected.

      Here’s a hint: If the claimed ‘freedom’ is ‘freedom to keep a person from running for office and being being elected’…that’s not any sort of ‘freedom’ whatsoever. If the membership wants leaders who are X, they will presumably only _elect_ leaders who are X. What these whiners want is the ability to filter out candidates (Presumable by the current leadership, so no conflict of interest there.) in _advance_ of an election.

    • Sean II

      Right on, brother! You go and tell it like it is.

      Only wimps worry about the implications of policy. Real men just go out and enact reforms, boldly experimenting in the laboratory of other people’s lives.

      How ridiculous that anyone should worry about ideological conformism being enforced on a college campus? Who ever heard of such a thing? And what fool could imagine that college students are inclined to push a rule close to or even beyond its natural limits? Have they never met these ripening scholars? Why, it’s not as though young people with an excess of time on their hands would ever confuse thuggery and political hooliganism with heroic acts of civil resistance on the Gandhi model. C’mon! To think that, you’d almost have to believe that kids in their early 20s were excitable, self-important, lacking in perspective, prone to forming cliques, and ruthlessly committed to the exclusion of outsiders. Why would anyone think such a thing?

      • DavidCheatham

        Ah, yes, the conformity of…forcing groups to allow the election of anyone the membership wants.

        • Sean II

          Once you’ve denied a group’s right to exclude people, what does the word “membership” even mean?

          • good_in_theory

            Exercise of the right to participate.

          • Sean II

            The right to participate, as you call it, entails both to right to associate with those you like, and to exclude those you don’t. Otherwise there would be no right at all, there would be only an mandate to associate with anyone and everyone.

          • good_in_theory

            That’s just stupid.

            An individual has a right to exit any association.
            An individual has a right to participate in any association.

            That does not amount to a mandate to associate.

            If one wants to disassociate with a particular member of a *university* group, they can exercise their right of exit.

            Think of the university group as create a physical space. Think of this space as a public good – non-rivalrous and non-excludable.

            Membership consists in occupying this public good.

            Membership is limited because entering this space is a matter of ‘opting in’, and not everyone opts in. If one doesn’t want to associate with someone, all one has to do is leave the public space.

          • Sean II

            So let’s say you and David Cheatham form a group.

            I exercise my right to join this group under the all-comers policy, and I bring two friends with me. You don’t like my friends much, and let’s face it, you don’t like me either.

            You and David exercise your right of exit. My friends and I expected this, and in fact we find it hilarious. So, we arrange to show up at the first meeting of your new group. Rinse, repeat…you get the idea.

            According to you, this entails no loss to you or David, since you both have the right to keep on exiting any group I join, ad infinitum.

            Is that really what you believe?

          • good_in_theory

            Except, again, you are paying absolutely no attention to the details of the policy (which you quite hypocritically and baselessly chided me for).

            If I want to exclude you, all I need to do is start a group that does not have the imprimatur of the university. I simply go to the library, reserve a study lounge, and go meet with David. When you try to enter, I tell you the room is reserved, and if you protest, campus security drags you out. I can even put a flyer up announcing our student meeting in the study room at 5 o clock. And you can come, and I can deny you entrance, because it’s a private meeting.

            All the university policy does, is require that associations which want to claim the right to a very limited set of privileges (basically, access to the application process for university funds and use of the university’s name in their group title), conform to an open membership and open elections policy.

            That policy in no way mandates association, because in order to cease association with someone who wishes to harass you in university backed groups, all you have to do is associate in non-university backed groups. If someone is actually following you around to every group you attend, then stalking is covered under the campus conduct code (as well as criminal law), and you can have them restrained.

            The only privilege which one is denied, is the privilege not to associate with any student in particular, when at a University sponsored student group. (But even that, as I’ve explained, can be secured if that student’s behavior (as opposed to their practices or beliefs) rises to the level of harassment).

          • Sean II

            But you’ve side-stepped the main question: why should you and David have to sneak off campus, or wait until I invade some room you reserved in the library (if you can even get a reservation, as a non-approved group suspected of racism or Seanophobia or some other hate crime of the moment) to charge me with stalking?

            Why not do things my way, and simply allow you and Dave to exclude me from your group in the first place?

            (BTW, where did I chide you for not knowing the policy? I think you may have me confused with someone else on that point.)

          • good_in_theory

            That’s not the main question. That’s actually a ridiculous question. Why should I have to wait for you to harass me before I request that the university use physical force to constrain and remove you from my presence in a public area? Because using coercion against you requires just cause.

            The main question is why should the university grant one the privilege of calling upon their coercive powers to remove another from one’s presence *solely* on the basis of another’s beliefs and/or practices, in the name of the University itself?

            Why should the Vanderbilt Baptists be empowered to have Vanderbilt college security forcibly remove me from a meeting *in the name of the university* solely because little Ms. Baptist thinks I’m a homosexual .

            She remains fully entitled to do it in her own name all the time, by exercising her inviolable freedom of exit.

          • Sean II

            I accused you of being obtuse about the implications of the policy, not ignorant of its details. Step away from the present case for just a moment and consider a different example.

            Let’s say a law was passed requiring that “All persons of declared homosexual tendency, and/or all persons having a history of sexual contact with persons of the same sex, must register with the law enforcement agency for the city or county in which they currently reside. The registration process is for information purposes only, and the data thus collected may not be used to place anyone under suspicion during an investigation of sexual crimes.”

            Now, if two people agreed to argue only about the specifics of that law, someone with your debating style would probably win. He’d be here saying: “Guys, stop being paranoid and read the statute!!! It doesn’t take anyone’s rights away. In fact, by acknowledging that homosexuals exist, it’s affirming that they do have rights! It just contains a registration requirement, and there’s a promise not to misuse the information, built right into the law. Chill out, will you?”

            And on the details alone, that person would be right. Facile and disingenuous, but technically right.

            But anyone who gives a damn about gay rights (or just rights in general) would be outraged by that law and frightened by its potential implications. We would want to know what’s behind it, whose complaints inspired it, who backed it, what theory forms its basis, how it will be enforced, what remedies will be available, what other measures are planned or contemplated in the service of its original goals, where it might lead, what limits might prevent it from doing this or that, etc.

            Guess what? That’s exactly how I feel about the Vanderbilt policy. I’m not just interested in the petty details of one puny policy at one bloated school among many in a corrupt and overgrown system. I’m interested in the wider trend of which that policy is clearly a part, and I’m interested in its furthest possible implications.

            Have you thought about what those implications are, in this case? Where do you think this policy came from? Of what theory do you think it is a part? Universities are slow and clunky and at times they can seem more bureaucratic than a federal agency. What do you suppose made those fat, lazy hierarchs get out of bed one morning and do something like this? What do you suppose they were hoping to accomplish?

          • good_in_theory

            Except your example is a disanalogy. It doesn’t illuminate anything about the case in question.

          • Sean II

            That is an unresponse.

            Did you fail to understand the idea that new rules are sometimes alarming both in what they require and in what they imply?

          • good_in_theory

            And that bromide means what about the *specific* policy in question here?

            Do you fail to understand the idea that sometimes the “alarming” possibilities a rule is thought to entail are sometimes not, in fact, entailed? Or are not, in fact, alarming?

            The university is not obligated to support every group imaginable. Its eligibility criteria will *necessarily* reduce the universe of groups possible to create under its aegis. A student group morally opposed to faculty supervision, written constitutions, elected officers, executive boards, or barring non-university members from the voter rolls is already effectively prohibited from bearing the university’s aegis.

            Here is an analog: in order to enter a university park, I revoke the right to form a gang in that park which could, if necessary, prevent any other student from entering it by physical force.
            Is this a limit on my freedom of association?

          • Sean II

            You seem like a nice enough guy and all, but right now you’re doing that thing trolls do when comment threads go one on one: ignoring context, refusing to deal with intangibles, playing dumb with regard to anything that isn’t explicitly spelled out, begrudging everything, conceding nothing, trying to reduce a philosophical question down to a mere quibble over facts, etc.

            Believe it or not, I am trying to understand where you’re coming from. You’ve made it very clear that you don’t think the Vanderbilt policy places an undue burden on free association, and you think any talk of hostile takeovers or chilling effects is just paranoid nonsense, or sour grapes, or whatever. That much is reasonably clear.

            But you’ve never said why you like the policy? You haven’t told me what good you think will come of it. You haven’t demonstrated the existence of some ongoing harm it will act to prevent. You haven’t explained why policies like this should be needed now, where they weren’t before.

            I can tell you exactly where my opposition comes from; it grows directly from my bleeding heart libertarian concern for minority rights. I look at a college campus and ask: who is outnumbered, who stands outside the safety of the hipster consensus, who lacks the support of faculty and administrators, who is out of fashion and therefore at risk?

            I look at College Democrats, progressives, athletes, asshole frat boys, and just plain old conformists, and I think: “You lot will be just fine. You’ve got the popular vote. This is your scene.”

            I look at racial minorities, feminists, gay people, and Muslims, and I think: “If nothing else, you’ve got the faculty and in some cases the law on your side.”

            I look at conservatives, Christians (at least the observant ones), authentic nerds, geeks, weirdos, and libertarians, and I think: “You guys are fucked. Nobody likes you, not teachers, not students, not the campus press. Even the RA’s view you with deepest suspicion. You are the outsiders who get accused of thought crime, then sent to creepy sensitivity seminars. You are the oddballs people report to campus police as potential ‘active shooters’.”

            I see this, and I see Vanderbilt’s policy, and I see scared Christian groups leaving campus in protest, and my instinct to worry about the persecution of unpopular groups and ideas kicks in good and hard. Sounds like the people at FIRE felt likewise.

            That’s my story…what’s yours?

          • good_in_theory

            I think of these groups and I see absolutely no obstacles to them:

            Expressing themselves in public
            Advertising their groups
            Finding private spaces to meet
            Seeking protection from harassment
            Excluding others from their mutual association

            I see Christians going to, for example, the University Religious Conference building which exists two blocks from the campus at a public university in a secular, liberal location, or one of the 4 different denominations of Christian church each directly across the street from the border of the campus. Or the Jewish center similarly located.

            I see students who are empowered to reserve rooms for private use on campus for their own purposes with legal recourse against any discrimination.

            I see students who are given broad latitude to design the constitution for their open membership organizations, introducing strong executive decision making authority to protect against majoritarian policy setting and relatively stringent conduct requirements in order to maintain good standing as a member as an effective block against scalawag officers.

            I see groups which are required to have a faculty adviser who has the authority to deny the spending of funds if, for example, the college democrats want to raid the republican’s fund to pay Noam Chomsky to speak.

            I see student codes of conduct which expressly allow recourse to be taken against malicious harassment.

            I fear privileging incumbent members of a group and giving them the authority to define and control the meaning of a public institution across time, monopolizing its reputation and funding and closing out outsiders and prospective members, while being themselves barred from creating competitive organizations by university policy, which restricts creating groups with similar purposes. That is to say I fear giving incumbent members great power over prospective members and like the prospect of necessary democratic openness, which is, of course, an originary part of a universitas magisterium et scholarium – a universal society of masters and scholars/teachers and students.

            I see a university taking a policy that any group which wants to take its funds and the use of its name must meet the threshold of openness and demoratic rule towards the entirety of the community which constitutes the university, without otherwise disadvantaging any other non-profit student group which wishes to use its facilities.

            I see a university which will not use a student’s fees to fund a group which would exclude him or her as a member or a candidate for office.

          • Sean II

            Nice audition. I believe you’ve got exactly what it takes to be a successful college administrator.

          • good_in_theory

            And you’re perfectly fit to pick up a job at a conservative institute.

            You’ve yet to demonstrate why it’s actually difficult for groups to maintain an on campus presence without the ability to use the university’s name or apply for university funds (which are already selectively disbursed).

            Don’t confuse whining about losing a privilege with an actual loss of rights.

            Christian groups are “leaving” campus because Vanderbilt has slighted them. Yet all the students remain on campus, and continue to associate with each other, and continue to refer to themselves by the name of their faith or interfaith coalitions, continue to communicate with each other as a group, and continue to have the right to recruit and advertise on campus and express their beliefs. If they’re unable to figure out a way to meet in private on campus, then Vanderbilt needs to raise its admissions standards, because apparently its current students are incapable of performing simple tasks.

          • DavidCheatham

            Yes, exactly. And I like your analogy of ‘space’, because that is really the issue here. Vanderbilt’s rule is pretty simple when you look at via private property rules:

            No student may be barred from any _Vanderbilt_ space open to the students. Whether or not a student group is meeting there.

            Now, student can be required to _join_ said group, paying dues and whatever, but they cannot be _barred_ from doing that, regardless of what the rest of the people there wish.

            And in any group of students in such a meeting, the majority rules. Bylaws can vary in different ways, but, much like the US constitution requires of individual states, such groups much have some form of democratic governance.

            If the rest of the students in a meeting place disagree with this, they are invited to go somewhere _besides_ those meeting places. As I pointed out elsewhere, the rules do not actually seem to prohibit attendance requirements, so it would be easy enough to make these (entirely hypothetical) ‘hijacks’ require people to attend a year of meetings before being voted into office, which is a bit extreme for the sort of ‘harassing’ that might (hypothetical) happen.
            This is not _exactly_ what is going on (Vanderbilt also asserts trademark protection on its name), but is close enough that I think actual libertarians can see that Vanderbilt has the right to do that. (Actually, Vanderbilt has a right to do a lot ‘worse’. They could, entirely reasonably, ban student associations altogether.)

            None of this stops student associations from existing at all, _or even using university resources_. As was pointed out, universities usually have places that small unofficial groups can reserve. And there are plenty of public spaces…and harassment is illegal.

          • good_in_theory

            Yeah, I found the spatial conception to really help in sorting out what was going on for myself as well.

            It’s important to emphasize that *Vanderbilt* space =/= space at Vanderbilt. Space at Vanderbilt can still be transformed into private space for Vanderbilt students.

            What things really hinge on for me is the ability to constitute a private group through all the rights individuals are afforded as students of Vanderbilt.

            If their individual rights were abridged such that they could not mutually establish a private association and publicly express themselves within the space of the campus, while University sanctioned groups could, that would strike me as bad.

            But as it stands, university groups are trading the right of incumbent members to exclude prospective members and the right to have private membership and private elections for the privilege of using the Vanderbilt name and applying for Vanderbilt funds.

            Obviously, those who can afford the trade make a gain while those who can’t afford it don’t. That doesn’t mean discrimination is occurring – it means that different groups have different aggregate preferences among their incumbents.

          • DavidCheatham

            Indeed. I think there’s actually a much stronger reason to be morally outraged if it was the other way around.

            If I was a student, and groups that wouldn’t let me in could, nevertheless, apply for and receive university funds…that doesn’t even slightly seem fair to me. And while I’d care less about the ‘free space’, it is an issue…because my tuition is paying for that ‘free’ space.

            The only _slight_ hesitation I have is that I think Vanderbilt is slightly abusing trademark protections. I don’t agree with unofficial groups not being able to use the name. But this is more my _general_ objection to how trademark law works: Trademarks are intended to reduce confusion, so basically if you’re describing something accurately, I think you should have the right to use a trademark. Is a group composed of Vanderbilt students? Yes? Then it should be able to properly describe itself using the word ‘Vanderbilt’. It’s clearly not claiming to be Vanderbilt _college_, that would be crazy.

            OTOH, this is a very very slight issue, and one that has nothing to do with this specific circumstance. Generally speaking, while there’s freedom of speech, and freedom of assembly, there’s not really a freedom ‘to name your assembly whatever you want’, and infringing that is not actually an issue anyone should get worked up about.

            And the fact is, if it’s an outside group, the university would have to _sue_ to stop it, anyway. Just _asserting_ they can control that word does not, in fact, mean the courts will agree. I suspect the courts _would_ let people get away with calling yourself ‘Blah blah group at Vanderbilt College’, as long as they (TM) Vanderbilt College.

          • good_in_theory

            It may just be sophistry, but I think it’s reasonable for Vanderbilt to want to preserve a distinction between “A group of Vanderbilt students exclude gays from their meetings” and “An official Vanderbilt student group, materially endorsed by the university, excludes gays from their meetings”, just as they would want to distinguish between “a Frat recognized by Vanderbilt hazes its members” and “a Frat Vanderbilt refuses to officially recognize hazes its members”

            In fact, now that I think about it, the case of universities revoking Frat recognition, and the general case of “pseudo-Greek” organizations, which exist on various campuses without being subject to university regulation apart from the university’s ability to regulate individual student conduct, seems like a very good parallel case.

            Should a University be forced to recognize pseudo-Greeks? In not recognizing pseudo-Greeks, are the rights of association of pseudo-Greek members being harmed?

            What distinguishes the pseudo-Greek case from the pseudo-student group case? In either scenario, the rights of individual students to form groups appear to remain intact.




          • Sean II

            Hey, that was a low blow. To call someone a conservative on this blog is a serious provocation.

            Presumably a conservative would be making some stupid argument about how Vanderbilt is really a “private” institution that can do whatever it likes, up to and including a ban on all student groups. A conservative would refuse to notice the essentially public nature of a school grown massive through the steady nourishment of government subsidies, a school which has intimate ties with every echelon of the establishment, and controls an average of 5.5 years in the lives of a captive young audience who, thanks to a state-engineered social class system, wouldn’t dare go into adulthood without first purchasing the costly product Vanderbilt sells.

            Probably also, a conservative would be quick to roll his eyes at anyone who “whines” about his rights of speech or expression. After all, those aren’t the sort of rights real-grown-ups care about, and in any case, “free association” gives off a very unconservative whiff of patchouli.

            In keeping with the habits of his kind, a conservative would refuse to admit that restrictions on time, place, and manner sometimes have a chilling effect far beyond the letter of the laws. People must learn to work within the rules, you see, not outside them. We can’t risk disorder.

            But most of all, a conservative would say that thing conservatives are so fond of saying: “Love it or leave it”. That’s their answer to everything, isn’t it?

            Thank goodness neither of us has said anything like those things.

      • good_in_theory

        Yes, let’s actually think about the implications of policy. Which would require, you know, actually looking at the policies in question, as opposed to trusting hysterical summaries offered in videos.

        So what are groups *required* to have?

        Full time students as officers
        At least one faculty adviser
        Membership limited to students, faculty, or staff
        Purposes that do not significantly overlap with other groups
        Membership open to all students
        Elected office open to all members in good standing
        Compliance with relevant federal anti-discrimination law.

        What privileges do groups get, which students do not have as individuals or as members of groups not registered with the university, in exchange for meeting these requirements?

        Use of meeting rooms at a free or reduced rate

        Ability to apply for university funds
        A mail box
        Access to accounting and consulting on running the group

        What privileges do students retain as students which they would also have as official groups?

        Press access to university calendars and flyering kiosks, tabling space, &etc.
        The ability to associate themselves with the Vanderbilt name (as students, not as groups, of course)

        What alternatives to university support do students have for gaining access to event space at a free or reduced rate for events?

        Non profit organizations

        What, exactly, are groups which fail to meet the eligibility requirements missing out on, when they refuse to have an open voting rights and open office policy?

        As far as I can tell, it’s being denied the imprimatur of the university, the ability to apply for university funds, and the possibility of having a marginally more difficult time reserving public event spaces. Other than that, not being an official group is irrelevant.

        In what ways can an organization with open membership guard against paranoid fantasies of hostile take over?

        By, in the constitutional charter it is required to submit at the time of the formation of the group…

        Establishing requirements for good standing of the membership
        Establishing impeachment procedures
        Establishing decision making procedures and conduct standards for the group so as to limit membership authority as appropriate.

        And let’s be clear hear about what these groups are actually asking for: the authority to use physical coercion to exclude fellow students from university property. That is, the authority to call campus police and have them, if necessary, violently remove a student from university property because the members of the group consider that person’s *beliefs* or *practices* (as opposed to their conduct at the time) as grounds to disbar them from participating, voting, or running for office in a university group.

        Finally, let us note that if your open group *is* being harassed by an unwanted interlocutor, the student code of conduct already empowers you to bring charges against them for physical abuse, threats of violence, or harassment, and acquire a cease and desist order from the university which could, in principle, bar them from your group’s events.

        • Sean II

          Oh, well…if I have recourse through the student code of conduct, then why worry about pesky things like freedom of association and (arguably) my constitutional rights?

          I’m sure Greg Lukianoff will be equally relieved. Do you want to call him with the good news or should I?

          • good_in_theory

            Except your constitutional rights and freedom of association are in no way abridged.

            The ONLY things you are prevented from doing are applying for university funds and appending the University’s title to your group.

          • Sean II

            That’s not true according to your own previous comments, which mentioned the all important issue of access to campus meeting space. It’s also not true according FIRE, which mentioned the equally crucial question of access to student e-mail.

            Look, when you raise the transaction cost of a given activity, you get less of that activity. Many a protest has been silenced by city councils using complex forms and “parade permits” instead of the more obvious truncheons and mace.
            When the motive for raising transaction costs is clearly political, and the costs are inflicted upon associations, what you get is a practical abridgment of the freedom to associate. And it’s not an equally applied abridgment either: only those groups which are small and unpopular, and thus susceptible to pranks and hostile takeovers, have anything to fear. The “Heterosexual Beer & Frisbee Lover’s Alliance” will easily be able to protect itself on any American campus. But the “Wahabist Theological Study Group”, they have no such assurance.
            All they have is your promise that “pish, posh…it’ll never happen.” Which is hardly reassuring, since that pledge comes attached to most reductions in individual liberty.

          • good_in_theory

            Again, your ignorance of the policy is showing.

            Any registered group, non profit, or department can apply for space through the same office. All these groups are treated *equally* on the priority schedule used by the office.

            *For profit* groups have to apply through a different channel, but are on the same priority schedule as registered and non-profit groups. (Hell, they’re probably prioritized)

            Individuals students, qua students, also have the privilege to request access to space, through different channels, and can associate in this space.

            Further, there is also public space in the university, which does not need to be requested in order to be used. Finally, there are vast amounts of private and non-university space ripe for use.

            All the university is doing is saying that if you want to meet as a *University* student group in *university* student space, you do not have the right to exclude fellow students from membership.

  • good_in_theory

    To take a step back from my polemical response, I think what is actually a legitimate concern here would have to do with privacy. How can you reconcile “safe space” groups with “open membership” groups? But here, what is relevant is the ability to enforce a code of conduct when group members interact, not the ability to police who can or can’t be a member. So really, they are quite compatible.

  • Get the government out of the colleges (where it doesn’t belong) and then all your cases are easy to resolve by property rights.

    “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 government *is* morally required to allow such discrimination, wouldn’t you agree? That being the case, how can government morally fund institutions which don’t allow it?


    This issue brings to mind Nozick’s discussion of his vision of libertarian utopia in Part III of ASU. According to this view, to which I subscribe, the state exists to safeguard the right of individuals to live in those communities that best suit their values and other preferences, even if these communities are deeply illiberal. The state should safeguard the right of individuals to exit and ensure that each community respects the equal rights of others, but within these confines the state should tolerate all values and lifestyles, so long as they are freely chosen by competent adults.

    Vandy may have the moral (and legal) right to prevent groups from organizing and conducting their activites as they prefer, just as people have the moral and legal right to engage in hate speech. But having this right, doesn’t make Vandy’s actions right. I believe the University’s obvious efforts to supress certain ideas that it finds distasteful is inconsistent with personal liberty and the sort of intellectual freedom that should be the hallmark of any university worthy of the name. But, alas, such is the time we live in.

    • good_in_theory

      What efforts to suppress distasteful ideas? The only people suppressing ideas they find distasteful are members of groups which refuse to have open membership and open elections. The only way in which ideas would actually be suppressed, is if some coterie of Vanderbilt students dedicate themselves to the cause of infiltrating, democratically taking over, and then democratically controlling the official meetings of every student group which might express ideas they don’t like through electoral and parliamentary procedure.

      And even if that fantastic scenario were to occur, the aggrieved students could avoid the whole ordeal by simply forming a group which meets at the university, but is not a university group. All one needs is a “google groups” account and a student’s own individual privileges to, for example, reserve a study room, sit on the campus green, or engage in public demonstrations on campus grounds.

      In those cases where the group has an affiliation with a national organization, the solution is as simple as removing the national org’s imprimatur from the campus chapter, and assigning it to either a new group on campus, or running the group privately, but targeted at students, with the support of community members, their own resources, or the resources of the individual students.


        I believe you are confused. Say you have a self-help group of students that suffered child abuse. They attempt to help each other heal and recover by discussing their personal experiences. Joe wants to join. He has never been abused, but he gets his sick kicks from hearing about child abuse. This group can’t exclude Joe? What do elections have to do with this?

        Keven had it right when he said this:
        “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.”

        • good_in_theory

          But protecting privacy rights and having a member (and student) *code of conduct* are perfectly consonant with having open membership rights and open elections, as I noted above. Regulating conduct and regulating conscience are not the same thing.

          If there is a need to establish stronger privacy rights than deemed permissible in a code of conduct, then the university is free to set up institutional forums more appropriate to the task, such as university-run (as opposed to student-run) support groups.

  • One thing that’s really surprising to me about the comments on this post, especially given that most of the crowd here is libertarian, is a tendency to conflate “making it more difficult for me to do x” with “violating my right to x.” Vanderbilt’s new policy no doubt makes it more difficult for some students to associate effectively on the terms that they please (although not as difficult as some of you seem to think). But i fail to see how anyone’s right to freedom of association has been violated, unless you assume that a right to freedom of association entails an obligation on the part of others to assist you in that.

    It reminds me a bit of the outcry over Juan Williams’s firing from NPR. (Lots of other examples spring to mind, too, but one is enough). It was commonplace to hear right-wingers insisting that Williams’s freedom of speech had been infringed. Whatever the merits of the firing, anybody with a lick of sense can see that free speech has nothing to do with it. A right to free speech doesn’t entail that anyone owes you a forum in which to speak, or that those who don’t like what you have to say have to continue to associate with you.

    Anyway, I’d expect that from the conservative noise machine, but you guys are libertarians! You should know better!

    All that the Vanderbilt policy entails is that some student groups who previously enjoyed the benefits of being an “official” student group must either change their policies to bring them in line with the new rules or else lose the benefits. Whatever you think about the merits of the policy change, to suppose that Vandy is violating someone’s “freedom of association” here is absurd! You’d have to think that freedom of association means an obligation on the part of the university to continue providing those benefits, and that is just nonsense.

    Now, we can argue about whether the new policy or the old policy is more likely to promote effective association among students, and maybe that’s what people are really concerned about. But to have that argument we need to specify the relevant goals of student associations as such. Then we can have a debate about which policy more effectively promotes those goals. But then we’re having a very different argument, not one about “freedom of association” but one about EFFECTIVE association.

  • Jodpur

    I don’t see why the groups are protesting (except to play the Christian-Victim Game, the favourite of culture warriors). The directive merely said they could not discriminate against anyone. It did not say that they had to change their doctrine. So a homosexual could join the Catholic club (as, indeed, many have joined the priesthood) without undermining Catholic doctrinal objections to homosexuality.
    (PS. This post and the subsequent discussion demonstrate as much as anything why the Rawlsian right-before-the-good stuff is rather silly.)

    • I’d be really interested to hear more about why the “right-before-the-good” stuff is silly, because (as I understand it) that’s not just an idiosyncratic feature of Rawls’s view, but a necessary feature of any conception of justice appropriate for a society of people who reasonably disagree about the good. If you accept that the role of principles of justice is to make it possible for individuals to pursue their own individual conceptions of the good on terms that are fair to others–and that formulation is sufficiently abstract to encompass pretty much all forms of liberalism, including libertarianism–then you already think that, in political philosophy at least, the right is prior to the good. Or am I wrong?

      • Jodpur

        Your “if you accept that the role of principles of justice…” begs the question. If I agree on that I certainly would have to retract my (admittedly hyperbolic) claim. But that very definition of justice offers a substantive view of the good (and likely rests on some substantive views about what it is to be a human being and what the fundamental goods of human life are). And that’s the point–there is no philosophical escape from those questions that Rawls termed ‘metaphysical’. The good comes first.

        • It sounds to me like you’re just asserting what Rawls denies. I’d be interested to hear why his account of the role of principles of justice *must* presuppose a substantive view of the good, a view of what the fundamental goods of human life are, etc. You say that it must, but I don’t see why (and neither does he).

          But anyway my main question was somewhat different: how are you going to get a liberal theory of justice (where “liberal” is understood in the broad sense to include the classical liberals and the libertarians) if you think the good is prior to the right? It seems to me that on any theory that places the good prior to the right, you’re always going to be compelled to sacrifice the interests of some for the greater good. Autonomy is the good? Well, we can have more aggregate autonomy by restricting the autonomy of group A in order to increase the autonomy of the larger group B. And so on. Any view that takes individual rights seriously is a view that places the right prior to the good. If you don’t think so, I’d be interested to hear how you’d get a robust account of individual rights on a teleological view.

          • Jodpur

            Good–a large set of questions. You can do it in a number of ways–you can, for instance, assert (hopefully with philosophical justification) the importance of treating all individual human beings with respect (you could do this in a number of non-Kantian ways). You would then show how certain rights fit with that respect. The point is that that is an assertion of the good. When you say “you’re lways going to be compelled to sacrifice the interests of some for the greater good” you are quite right–in a rights-based society we do sacrifice the interests of a great many people.

        • Or maybe you’re not a liberal?

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