Response from FIRE: a clarification

My previous post on FIRE's video about freedom of association at Vanderbuilt could have been more clear, though that's not to say an increase in clarity would have yielded a correct position.  What I should have made plain was that FIRE's argument against the CLS v. Martinez case obtains for public universities, but that since Vanderbuilt is a private university, it's not so clear that the case is wrong.

I emailed FIRE my post for comment, specifically how their argument (couched in a defense of freedom of association) would apply to a private, rather than public, university.  In response, I was given a group of links to a different argument.  Roughly, the pledge of any university, private or public, to it's students in the mission statements or student information packets, contains an affirmation of the freedoms associated with academia.  The freedom to associate, express views, hold and espouse opinions, in keeping with the principles of free expression generally, are implicitly/explicitly afforded to prospective students in a form that several recent Supreme Court cases regard as contractual.  In this way, even a private university is bound to protect said freedoms on pain of breaking a legal contract with the students.

Now, I'm obviously no attorney, so any examination of the legalese on this is above my pay grade.  However, as a blog author, nothing is beyond the scope of my pen.  So rather than delve into FIRE's contract argument, I'd like to provide a modest reason why all universities should decline the privilege afforded them via the CLS v. Martinez ruling I discussed in my last post.

To my mind, it's not altogether clear that anyone is "harmed" by failing to be invited into one or another student associations.  The fact that a Christian organization refuses admittance to students who do not meet non-academic criteria, eg sexual orientation or gender, doesn't ipso facto rob them of any rights protected under the constitution.  There is no principle of free association that makes sense of giving any individual the freedom to associate with any group that does not wish to associate with that individual.  Indeed, forcing an association to accept a member against it's wishes seems perilously close to failing to protect that association's existing members right to their freedoms.

This failure to protect can manifest in myriad, destructive ways.  It is not unheard of for a larger group to inject itself into a smaller organization in order to distort or dilute a message it does not agree with, essentially "shouting down" an unpopular message by simply overwhelming it from within.  This has been discussed by the Supreme Court previously, as I quoted in the last post on this topic.

There is a lot more bubbling beneath the surface on this issue, as it pertains to the university culture and free expression.  I'll have some more content up soon aimed at some thoughts I've had recently, but until then, feel free(see what I did there?) to visit thefire.org and browse through their articles and videos.

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