Over at Professor Balkin’s blog, Ian Ayres and Jennifer Gerarda Brown have a post up called “Judge Alito, the Boy Scouts, and Associational Fraud.” They comment on the questions asked, and answers given, during Judge Alito’s confirmation hearings concerning “Concerned Alumni of Princeton” and articles in the CAP’s magazine that “expressed sexist and racist views of Princeton’s changing demographics.” And, they suggest that just as Judge Alito — “like the Inspector in Casablanca” — was “shocked to learn of CAP’s . . . racist and sexist policies,” many were “shocked to learn” — after the Court’s decision in Boy Scouts of America v. Dale — that “their beloved Boy Scouts had taken an anti-gay policy.”
They said, as Judge Alito says now, “that certainly was not any part of my thinking in whatever I did in relation to this group.” They regretted the time, money, and talent they had devoted to the Boy Scouts over the years. Steven Spielberg resigned from the national advisory board of Boy Scouts of America. This sad, “if I’d only known” reaction from both Alito and former Boy Scouts suggests that organization members can be victims of a kind of associational fraud when they are induced to join a group without being fully informed of the group’s discriminatory policies.
Having identified this phenomenon — i.e., “associational fraud” — Ayres and Brown continue:
How could we prevent such associational fraud? We can all start by demanding to know more about the policies of organizations before we join them. But the law can help. Government has a constitutional interest in promoting informed association. A state like New Jersey might pass an “Informed Association” statute that would require organizations to disclose discriminatory policies to prospective members before they are allowed to join. The statute might even require that members sign a statement acknowledging that they have been fully informed of the organization’s policies and still choose to join. These written acknowledgements would not need to be made public. An organization with discriminatory policies might only be asked to retain evidence that its prospective members had signed the required acknowledgements. Many people couldn’t bring themselves to sign a statement acknowledging that they were choosing to associate with a discriminatory group. But at least part of this predictable decline in membership should be seen as an enhancement in association freedom. The freedom of association also means the freedom not to associate. And associational decisions are impaired if people are duped into joining. Put another way, the law must give meaning to associational silence. If a group remains silent, what does this silence signal: that the group implicitly represents that it respects the state’s non-discrimination norm, that the group might not, or that group does not respect the norm? Any potential legal inference burdens some members’ associational rights, in that it forces either the members or the organization to speak to assure that their associational preferences are met.
Clearly, government cannot and should not force associations to clarify every position they hold. But anti-discrimination laws of general application (like New Jersey’s Human Rights Statute) are fundamental state policies. It’s reasonable for a state to insist that organizations taking contrary positions disclose their true colors to potential members before people join up.
The Ayres / Brown proposal is intriguing and provocative, but is it really one that we’d want to endorse?
For starters, I’m not sure about the premise that “[g]overnment has a constitutional interest in promoting informed association,” if “constitutional interest” means “an interest that can justify a regulation, like the ones proposed, that burdens individuals’ expressive-association rights or the rights of expressive associations.” I suppose it would be entirely legitimate to apply generally applicable anti-fraud laws to “expressive associations,” as to everyone else, but I’m not so sure about the idea that government may, in effect, compel speech by associations — that is, require them to state their positions on matters thought by the government to implicate “fundamental state policies” in order to make sure individuals’ decisions-to-associate-expressively are, in the government’s view, “fully informed.”
Now, it seems right to say that “[t]he freedom of association also means the freedom not to associate. And associational decisions are impaired if people are duped into joining.” The trick, I guess, is distinguishing “duping” from “not stating explicitly or anticipating accurately every position that the association will take, going forward, particularly in response to coercive regulation.”
As for the writers’ final claim — i.e., that “[i]t’s reasonable for a state to insist that organizations taking contrary positions [to fundamental state policies] disclose their true colors to potential members before people join up”: It is not (yet) clear to me that an association should be required to “disclose [its] true colors”, if this means “spell out explicitly, with the clarity demanded by the government, every position they do profess, or will profess to hold in future litigation.”
I suppose a lot of this comes down to what we think the “freedom of association” is and is for. My own view, which might account for some of my hesitation about the Ayres / Brown proposal, is one that tends to emphasize the “structural” role of associations, rather than their function as vehicles for individuals’ expression. In any event, I’d appreciate others’ reactions to, and thoughts about, their post.
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Comments
Their use of the “Inspector from Casablanca” simile is either disingenuous or surprisingly inapt. Captain Renault knew full well about the gambling — his “shock” is feigned. So comparing him to Judge Alito implies Alito knew about CAP’s policies and pretended ignorance. They don’t make that point anywhere else in the piece, though, and their point seems to be that Alito and others actually don’t know about the discriminatory policies.
Posted by: Matt Bodie | Jan 29, 2006 4:43:48 PM
I am worried about who (and how) will decide what constitutes “positions contrary to fundamental state policies.” I suspect that most people in most states still think it’s perfectly ok for a private children organization to abstain from hiring gays. If such popular view is obviously contrary to “fundamental state policy,” I can only imagine what will come next.
Posted by: Kate Litvak | Jan 29, 2006 3:59:42 PM
It’s interesting to think about the Ayres proposal as a form of compelled expression a la West Virginia v. Barnette. A related point is whether organizations could object to such a law on the kind of theory the Court established in NAACP v. Alabama. Compelled disclosure of NAACP membership lists didn’t violate the first amendment in itself, but would have had the effect of chilling freedom to associate by deterring people from joining the organization, thus the Court announced a prophylactic rule that precluded forced disclosure in the interest of protecting associational freedom (this, incidentally, was the genesis of the “penumbras and emanations” theory that was adopted in Griswold/Roe).
Seems like the Ayres proposal would have much the same effect. If it became known that an organization discriminated, people would be much less likely to want to join it (the proposed law wouldn’t publicize discriminatory policies, but it seems inevitable that the information would eventually leak out as multiple applicants reviewed the disclosures). It’s less politically appealing to defend the right to join a discriminatory organization in 2006 than the right to join the NAACP in Alabama in the 60s, but the right of association doesn’t make that distinction, so I think the Ayres proposal would be invalid on the NAACP v. AL theory.
Posted by: Dave | Jan 29, 2006 3:27:39 PM
When you read Ayres treatment of the idea, 100% of the purpose is to publicly shame groups that Ayres doesn’t like. So let’s see how the idea would play out if implementation weren’t controlled from New Haven.
What are the disclosures that a southern state legislature might require of NARAL or the ACLU? Not too hard to imagine, is it? Pretty appalling, too.
Before floating a patently ridiculous idea, Ayres should have applied parity of reasoning and concluded that he himself would loathe the very idea he claims to support.
Posted by: get real | Jan 29, 2006 11:45:08 AM
Like most of Ayres’ proposals, this is profoundly silly and oh-so-Yale. Most groups, including Concerned Alumni of Princeton, don’t take formal positions on such matters: the “views of the group” are usually hard to define, and may boil down to the views of one or two people active in the group. These views change frequently, which would require a new round of approvals by every member in the group at frequent intervals. Ayres’ proposal would involve so much paper work that groups would simply not take positions, and it’s hard to see how that benefits anyone. I realize that Ayres is supposed to be “thought provoking,” but surely we don’t need to rocket into outer space and leave the real world behind to be “thought provoking.”
Posted by: lawprof | Jan 29, 2006 10:51:06 AM