an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Judge Alito, the Boy Scouts, and Associational Fraud
Ian Ayres & Jennifer Gerarda Brown
In Senate hearings on the nomination of Judge Samuel Alito to the U.S. Supreme Court, Senator Patrick Leahy asked the question that has been on so many people’s minds: “Why in heaven's name were you proud of being part of CAP?”
Leahy was referring to Alito’s application for a job in the Reagan administration, in which Alito cited his membership in the “Concerned Alumni of Princeton University, a conservative alumni group,” as evidence of his “philosophical commitment to the policies of this administration.”
This 1985 application has embarrassed Judge Alito, because as early as 1973, CAP had publicly stated it opposed adoption of a sex-blind admissions policy at Princeton, and by 1985 several essays in CAP’s Prospect magazine had expressed sexist and racist views of Princeton’s changing demographics.
Like the Inspector in Casablanca, Alito is shocked to learn of CAP’s positions. He has emphatically distanced himself from the racist and sexist policies of the group, saying, “somebody from my background would not have been comfortable in an institution like that, and that certainly was not any part of my thinking in whatever I did in relation to this group.”
It sounds like he was tricked into joining.
Imagine supporting an organization for years, only to learn later that the group had adopted policies with which you were not, in Judge Alito’s words, “comfortable.” Well, Judge Alito is not alone. Thousands of people experienced just this sort of embarrassment when another New Jersey institution articulated and then fought to enforce discriminatory policies – all the way to the U.S. Supreme Court.
In Dale v. Boys Scouts of America, the Court decided that the Boy Scouts’ constitutional right of expressive association included to right to prohibit all gay men from becoming Scout leaders. The court exempted the Boy Scouts from New Jersey’s Human Rights Statute, which generally forbids public membership organizations from discrimination on the basis of sexual orientation.
Many, many people were shocked to learn 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.
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.
Judge Alito’s own participation in CAP vividly illustrates the dangers of associational fraud. If an Informed Association statute had been adopted by New Jersey, it might have protected Samuel Alito and thousands of former Boy Scouts from unwittingly supporting organizations promoting policies with which they disagreed – or it would allow us more clearly to hold Alito accountable for the policies he supported. Posted
by Ian Ayres [link]
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.
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:
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.
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.