Judge Alito, the Boy Scouts, and Associational Fraud

Ian Ayres

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 10:00 AM by Ian Ayres [link]