Ruth Bader Ginsburg was wrong. When she wrote the majority opinion in CLS v. Martinez she assured us that concerns over the erosion of freedom of association on our nation’s campuses were overstated. If students perceived that their free association rights were abridged because they could not control their group membership they could simply forego the official recognition process and meet off campus. Sure, it might be inconvenient. But at least it would provide a safe haven for students wishing to control their group membership and manage their internal affairs without administrative interference.
Some will recall that the Christian Legal Society brought its case to the Supreme Court after campus officials told them it was “discriminatory” to have belief and behavioral requirements for its members. The Court sided with the university because their administrators claimed to have an “all comers” policy, which forced all university clubs to have membership open to everyone regardless of belief or behavior. When Ginsburg suggested that clubs that did not like the policy could simply meet off campus she was effectively telling them to go sit in the back of the bus.
Despite its narrow application to schools with all-comers policies, CLS v. Martinez was dangerous for at least two reasons:
1). The ruling allowed public university administrators to violate student free association rights – provided they did it to everyone, rather than targeting certain groups. With one stroke of the pen, the Supremes stated that it would be wrong to violate the free association rights of just one group. With another stroke of the pen, the Supremes ruled that it would somehow be better if universities did it to all groups “equally.” This is legal nonsense. The law may be an ass. But it should never be that much of an ass.
2) Perhaps the most dangerous aspect of the Martinez ruling is that it undercut our nation’s long- standing tradition of respect for freedom of association as a cultural value. (Does anyone remember Democracy in America by Alexis de Tocqueville?).
As I write this column I happen to be sitting in a hotel lobby near the campus of Vanderbilt University. Here at Vanderbilt, an “all comers” policy was implemented in the wake of the Martinez opinion. This action was undertaken despite the fact that the opinion did not actually apply to private universities.
Remember that Martinez only told public universities what they could do without violating the First Amendment. It did not tell private universities what they should do. At least it did not tell them explicitly. But saying that all-comers policies are not unconstitutional also sends the message that they are not otherwise objectionable.
Without question, Martinez affirmed a new definition of tolerance that now permeates the campus culture. Under this new definition of tolerance there is no distinction between different types of discrimination. It is all the same – whether along the lines of race or sex or belief. And it all must be condemned equally. The new tolerance demands unanimity in defense of diversity.
Therefore, it comes as no surprise that Harvard University just announced that members of independent, single-sex, off-campus organizations are about to be blacklisted from its Rhodes and Marshall scholarships. They will also be banned from leadership positions in on-campus organizations and athletic teams. Harvard President Drew Gilpin Faust is fully committed to the new blacklist. She says the blacklisting policy is necessary to foster “inclusion” and “address deeply rooted gender attitudes.”
Note the language Faust uses. She is not targeting behavior. The off-campus groups have not “done” anything wrong. She is rooting out attitudes. People in these organizations have the “wrong” attitudes and she wants to ensure that everyone on campus has the “right” attitudes. Note that this is all done in the name of postmodern conceptions of “inclusion.” If people persist in having the “wrong” attitudes the answer is not education. The answer is excluding them from educational opportunities.
So what are we to make of these seemingly glaring contradictions? On the one hand, the all-comers policies seem to stand for the principle that we should not have rules that discriminate or exclude people from groups on the basis of belief. On the other hand, the blacklists clearly exclude people of the basis of “deeply rooted attitudes” about gender.
At first glance this is all about postmodernism. The administrators don’t like absolute truth so they tell student organizations that one belief is just is good as the next. Thus, they cannot be allowed to “discriminate.” And the assault on single-sex organizations seems to reflect the same worldview. People don’t have essential characteristics. Gender differences are socially constructed and ultimately meaningless. So the distinctions are banned altogether.
In reality this is just another Faustian bargain. Like the Vanderbilt all-comers policy, the Harvard blacklist is just a grab for power. Administrators who have power advance these initiatives it in order to get more control over a rapidly shrinking marketplace of ideas.
These people never really believed that all beliefs are equal. They believe that some ideas are more equal than others. They also believe that their ideas are the most equal of all. This is especially true when the subject is equality.
In the end, these administrators will succeed in gaining a full monopoly in the marketplace of ideas. But they will have sold their souls in exchange for power. In the process, the word “university” has become another meaningless construct.
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