Thursday, January 19, 2006
Judge Alito, the Boy Scouts, and Associational Fraud
Ian Ayres & Jennifer Gerarda Brown
But CAP wasn't an organization that discriminated. There was no rule that women, minorities, etc. couldn't join CAP. Rather, it was an organization that advocated discrimination, and I don't know how you'd require disclosure of THAT.
The thing that sets CAP apart, at least according to Alito's opponents, is that it was an organization whose fundamental purpose was reducing female and minority admissions at Princeton. The Boy Scouts may discriminate, but it's not their "fundamental purpose," which I suppose is teaching kids how to build campfires and such.
It's easy to join an organization because you support its fundamental purpose, without realizing that there are hidden aspects of it you don't support. It's harder to join an organization, as Alito claims he did, without knowing its fundamental purpose. It's harder still to boast about it on a resume years later, while still claiming you had no idea what the organization was really about.
Prof. Ayers writes that, "A state . . . might . . . require organizations to disclose discriminatory policies to prospective members before they are allowed to join."
I assume that he means, by "discriminatory," policies that treat people unequally based on sex, race, sexual orientation, etc. Would this also apply to organizations that support affirmative action, when such action treats people unequally based on race or sex? Would such organizations be required to acknowledge that their policies were "discriminatory" in these areas?
It seems to me that you're trying to promote two objectives: (1) protecting members from unwittingly joining an organization that doesn't share their values, and (2) eliminating the possibility of plausible deniability when someone chooses to join a discriminatory association, but later says that they didn't know about the discriminatory aspect.
With respect to the first one, I don't think that legislation is the answer. Rather, people should just be more careful, especially when they--like Alito--tout their membership in certain associations in a way that effectively says "my membership says something about who I am." If Alito had been more careful about figuring out what message his membership in CAP actually projected, he wouldn't find himself with egg on his face as he does now.
Similarly with the Boy Scouts, prospective members should just be more careful. Either that, or they should "take the association back" if what's actually going on isn't that they were "tricked," but rather that the leadership is misrepresenting the "real" values of the Boy Scouts.
As for the second purpose, I suppose it raises a larger social question of whether it's desirable to make people who join associations more responsible and require them to answer for the values that the association holds. Would religious groups be subject to this sort of thing, though? Does the Catholic church's position against homosexuality mean that, under your law, they'd have to give literature to prospective Catholics. Does this mean that, had your law been in place in the past, Judge Alito would have to answer for the positions that the Vatican has taken?
I remember the two of you raising similar points on Lessig's blog a while back. It made me think a lot, but I haven't really reached any conclusions.
I suppose the other question I have is a practical one. How would the law be enforced, when many organizations have many tiers of members. Some just have meetings open to the public, don't maintain official lists, and say that anyone can call themselves a member. Others have a core group of dues-paying, participating members, and a sort of outer circle "I occasionally check out the meetings, but I'm not a *member*" group. Would the line be that a group must hand out disclosure literature before it accepts money from someone?
The conceit that might be inferred from this post is interesting: somehow both Alito and members of the Boy Scouts did not know the "discriminatory" aspects.
I'm with Steve in thinking the former is a bit harder to accept. I am also with the person who suggested associational knowledge as promoted here is probably not best advanced by legislation. Finally, I'm with the person that wondered (though I'm more sure) if this would not threat associational rights.
But, finally, was the anti-gay scout leader policy of the Boy Scouts really unknown? I am dubious, but having no direct involvement, maybe you are right.
Another organization which has long been guilty of associational fraud is AAA, the American Automobile Association.
They're vast distances from full-disclosure about their pro-highway, pro-sprawl, anti-environmental agenda.
Based on my personal experience, the anti-gay scout leader policy was not at all public...at least among the scouts themselves, even senior patrol leaders/eagle scouts/whatever.
In fact, I was under the impression that there was no such policy, as there was one troop I knew of which had an openly gay scout leader.
That the national Scouting organization is run by a few Texan extremists, with disproportionate Mormon influence, was also not publicized.
At least they're not in the closet anymore, and any would-be Scout can research their stances at the offsite website http://www.bsalegal.org/
I doubt any such "disclosure" requirement could be constitutionally enforced. Think NAACP registry lists.
In the beginning, I decided to join the campaign to impeach your "smirking chimp", my "dum'ass botch". As evidence for that, you'll soon be invited to click on a hyperlink.
Before doing so, however, I would like you to read through the rest of this text. In case, you'd like to know, the U.R.L for your blog, specifically, "Balkinization", is found at the third hyperlink on the list below ... ah, please remember, no clicking until AFTER reading the entire text.
Perusing your blog, I believe I arrived at what is a reasonable inference. That is, both you and your readers would welcome news that indicates the campaign to impeach the president is increasing in both vigor and breadth. Ah, you'll find that evidence by clicking on the second enclosed hyperlink.
As for my plan for capturing Osama, you'll find it by clicking on the first listed hyperlink, which immediately follows this colon:
.he who is known as sefton
oh, yes, surely, you've heard about the government "requesting" certain records about internet activity. oh, br'dah! ... cynical and skeptical lil'ole me, I'm smelling a rat in all that. Quite candidly, I have cause to suspect that more than compiling statistics on access to pornographic websites is involved.
oh, yeah, right after Hitler came to power, the German people were assured that, if they were innocent of untoward activity, they would have nothing to worry about ... yeah, right.
But what about my variant of your law, which requires that every fundraising solicitation from Yale--believe me, it's a lot of dead trees--must say in bold letters: "WE DO NOT ADMIT THE UNITED STATES MILITARY TO OUR CAMPUS." Why (other than hypocrisy) aren't you campaigning for this sort of disclosure?
Your failure to mention Alito's stated reason for why he believes he joined the group (to associate with its opposition to Princeton's expulsion of its ROTC unit) kind of blows any sense the reader might have that you argue in good faith.
Come on, I was a member of the Scouts in the early 70's, and I really doubt anybody who thought about it wouldn't have realized the implications of the Scout oath; There's a certain atmosphere of defiant simulated cluelessness in anybody who was "suprised" by the policy.
brett,Post a Comment
Which Boy Scout oath are you talking about?
In the one I know, it was obvious that "morally straight" was, you know, metaphor, and doesn't mean "not gay."
Although, as eleven year old tenderfoots, we thought it was funny to draw out that pseudo-implication.
I think the presence of Buddhists in Scouting was even touted in the Scout Handbook. So it's actually fairly surprising that the national organization was unrelenting in their discrimination against atheists and agnostics.
Frankly, given the makeup of the organization, I doubt that the Buddhists would be let in today.