A commenter (Tim) on an earlier thread raised an important objection to rules that bar religious discrimination by campus groups (including religious groups):
Imagine that anyone, regardless of religious belief, were allowed to become voting members of the “Christian Legal Society” or the “Muslim Students’ Association” or any other such group. What would stop people who disagreed with the group’s views from joining the group in large numbers, voting out the leadership, and then disbanding the group merely to silence them? Obviously, the students would have no meaningful right to free speech and association if this regime were allowed to stand.
Another commenter, EMB, responded:
I’ve seen this hypothetical argument made several times, but every time I wonder: are there any examples in the real world of this actually happening?
I can’t say how often these things happen, nor am I sure that anyone else can say it, either. But I do know of one case that involved that very fact pattern (though not at a university), and that was litigated all the way to the California Court of Appeal. The case is Hart v. Cult Awareness Network, 13 Cal. App. 4th 777 (1993), in which Scientologists were apparently trying to take over the Cult Awareness Network, which was hostile to Scientology. When they were refused admission, one sued, claiming the denial violated California antidiscrimination law; the court held that antidiscrimination law couldn’t apply here, and based its reasoning partly on CAN’s First Amendment rights to expressive association.
I think the California Court of Appeal reached the right constitutional result as to general bans on discrimination. I also think that, partly for this reason and partly for others, public universities should — as a matter of policy — allow ideological student groups to discriminate based on members’ ideology, and therefore allow religious student groups to discriminate based on members’ religious views. (I think that when it comes to the government as funder and as landlord, this policy is not constitutionally commanded; the government may choose to impose such antidiscrimination rules on student groups that it funds. But that’s a story for another post.)
Skyler says:
That’s pretty much how the USSR took control of the Spanish military and government during the Spanish Civil War.
December 8, 2009, 12:47 amMark N. says:
Wikipedia has some examples of entryism more generally, although most are not by groups hostile to the original group, but rather by groups on the fringe of the original group, hoping to hijack it in their preferred direction (the canonical example being Trotskyists trying to take over democratic-socialist parties).
December 8, 2009, 1:24 amreadery says:
Does this approach require defining religion in terms of view? Can a religious group require membership in the religion where membership is not necessarily defined by viewpoint (for example, can a christian group require members to be baptised or a Jewish group require conversion by an acceptable authority?)
Note that the criteria for group membership are themselves often the subject of dispute and of differences in faith. If government defines religious membership as a ‘viewpoint’ or ‘belief’ and hence makes this the sole legitimate criterion for determining membership, the very act of doing this tend s to establish faith-oriented religions over religions which have other emphases or other criteria for determining membership.
The post was on view-point based groups generally with religion as an example. But in this respect, religion is not simply a subcategory of “viewpoint.” It is a distinct sui generis category with unique issues and legal rules.
December 8, 2009, 1:30 amZedward says:
The best successful example I can think of this, though this wasn’t a student organization, was when anti-Lieberman Democrats took over the “Connecticut For Lieberman” party and made it into a progressive party opposed to Lieberman.
December 8, 2009, 1:33 ammatth says:
Though it’s not a religious example, “American Pharaoh” describes how the first Mayor Daley flooded the Chicago chapter of the NAACP with “precinct captains and patronage workers,” and proceeded to sweep the chapter’s 1957 elections.
December 8, 2009, 1:53 amjiffy says:
University support for student organizations typically comes from fees paid by students, some of whom will be excluded from enjoying the benefit of that support if the groups receiving it are allowed to discriminate against them. Before universities decide “as a policy matter” to allow discrimination because of the fear that student groups will otherwise be infiltrated, shouldn’t they figure out whether that fear is real or only theoretical?
December 8, 2009, 1:58 amreadery says:
One thing I simply do not understand — I do not understand it — is how it is possible to believe that a state has an interest in diversity in various educational settings so strong they are considered compelling and can override individual rights in at least some circumstances, yet the idea that it might have an interest in the gender diversity of families is considered irrational and a front for bigotry. How can one have such a viewpoint and live with oneself intellectually?
If it literally does not matter what gender the people a child grows up with is, then the idea that the state has any interest in educating people in a diverse environment is hard to understand. What could be the basis of such an interest if gender diversity has no actual affect on a child?
On the other hand, if gender diversity at school has an affect on a child, how could it not have an affect at home, where the child spends a much longer period of time under more formative circumstances?
December 8, 2009, 1:59 amNevard says:
To add a bit of clarification, unfortunately the cult of Scientology has managed to capture the CAN, aided by amoral judges.
December 8, 2009, 2:07 amjiffy says:
Readery: Out of curiosity, are you for gay marriage and against affirmative action or for affirmative action and against gay marriage?
December 8, 2009, 2:11 amTweets that mention The Volokh Conspiracy » Blog Archive » Ideological Groups Being Taken Over by Those Hostile to the Underlying Ideology -- Topsy.com says:
[...] This post was mentioned on Twitter by Jeff Gentry and Eugene Volokh, Eugene Volokh. Eugene Volokh said: Ideological Groups Being Taken Over by Those Hostile to the Underlying Ideology: A commenter (Tim) on an earlie.. http://bit.ly/4M8ORc [...]
December 8, 2009, 6:20 amDan says:
This is very close to the controversy at Tufts University over the Tufts Christian Fellowship. See http://www.thefire.org/case/54
The basic issue was that an out-of-the-closet lesbian student wanted to run for a leadership position in TCF, which as an organization, espoused that homosexual acts were immoral, went against Scripture, and contrary to the values of the organization. Rock, meet hard place.
December 8, 2009, 6:39 amDJR says:
I believe CAN was eventually bankrupted by Scientology’s abusive litigation practices, and then Scientology bought CAN’s trademarks and effectively became CAN.
December 8, 2009, 8:55 amA.C. says:
The only examples I remember from college were the fringe-takes-middle kind. An environmental group that just wanted to go hiking and clean up riverbanks might get overrun by a Marxist group pushing an anti-capitalist agenda.
I’m one of the people who see no contradiction between being gay and being Christian, so I see no reason why lesbian Christians (and all others with more inclusive views) can’t start their own group and compete to get their message across. The infiltration game strikes me as unpleasant, even when I generally support the positions of the people trying to do it.
(If people with different views are already in the same denomination, of course, they are free to contend over what that denomination’s policies should be. I’m talking about situations where everyone can start their own club, not internal rivalries in established organizations.)
December 8, 2009, 9:11 amSara says:
Questions:
1) How would a university enforce the bylaws of each group? Set up some bylaw committee to judge who is and who is not a true
scotsmanmember?2) Sometimes groups have disagreements about the direction of the group, is the university suppose to take sides?
3) What prevents the losing faction from just forming a new club?
December 8, 2009, 9:28 amMFS says:
At my University in the late 80′s, the College Republicans joined the College Democrats en masse and then voted to disband themselves. True story!
The CR’s then set up a Byzantine charter for themselves where as the democratic elections were only for the Vice-Chair of the group and could be vetoed by the existing Chair. The Chair as a matter of course then hand picked his successor.
Fun times, the late-80′s
Best wishes,
December 8, 2009, 9:28 am-MFS
James T. Carrington says:
That’s what I found fascinating about “Homage to Catalonia” – how Orwell explained the infighting between the Internationals, the Soviets, and the local Spanish anarchists – and how it enabled Franco to succeed…
December 8, 2009, 9:38 ampete says:
I was an officer for Intervarsity Christian Fellowship when I was in college, at a private college and we did not get any funding besides being allowed to access campus rooms and events. We were pretty clear that membership was open to anyone who wanted to join and being an evangelical organization we wanted and invited everyone on campus to join. But officers were selected solely by outgoing officers to keep the mission consistent and they had to agree to abide by our fairly generic evangelical theology.
In our membership we had Catholic, Messianic Jews, Southern Baptists, Presbyterians, Methodist, Lutherans etc. along with agnostic and people with no particular religion who attended our bible studies. I think we had a couple of Buddhists members who showed up sometimes as well.
December 8, 2009, 10:06 amAndyM says:
So, from the perspective of someone who was involved in the branch of student government charged with dealing with student groups a few years ago…
1 & 2)If a student complained, or another group complained, we could convene a group of students to arbitrate the problem. We were empowered to punish groups by removing all of their university backing (funding, office space on campus, the right to use the university name and other trademarks, use of the university IT department to host your web page and mailing lists…). In practice, this pretty much never happened; in my four years doing this, I can remember only one instance of us using the full process and punishing a group for violating the rules, and maybe a dozen cases of someone complaining and us resolving it by calling in the leaders of the group to say “Someone complained about X. Here’s why you can’t do X. Please fix it.”.
3) There was generally a very low bar to someone forming a rival group (you needed five current students for your new group, one of whom is willing to fill out some paperwork). However… You might be a lot happier taking over the old group to get its stuff — office space in particular was very limited on campus, so approximately a tenth of the student groups had offices. Since pretty much the only way a group ever lost an office was by disbanding (and the sort of groups that got them in the first place were the large well-organized ones), there were groups that had been on the waiting list for an office for over twenty years (possibly a lot more than that; the records of the office allocation process only went back to the 80s). Similarly, a few student groups owned a lot of money (the student newspaper had hundreds of thousands of dollars in its accounts, as well as regular advertisers — starting a competing newspaper would be difficult), or other possessions (several of the religious groups owned musical instruments, for example).
Our general guideline was “you can’t restrict membership/leadership by race or religion” (thus dodging us having to ever arbitrate who is an adherent of a religion, or whether people from Taiwan are ‘Chinese’), but you were allowed to restrict by “interest in area X”. So an atheist who was genuinely interested in learning about the bible could join your bible study group, but an atheist who was being a jerk and trying to sabotage religious groups could not.
It certainly wasn’t a perfect system, but it seemed to work pretty well in practice. I’m happy to expand on some of my examples if any of you are interested in more detail of how this worked in practice, though we didn’t have anyone trying very hard to subvert the system, so I’m not sure how well it would hold up under real stress.
December 8, 2009, 10:47 amParatrooperJJ says:
DJR – That is correct.
December 8, 2009, 10:51 ammischief says:
University support for student organizations typically comes from fees paid by students, some of whom will be excluded from enjoying the benefit of that support if the university dictates the terms on which groups receiving it are allowed to organize and speak.
If a student objects to the set-up of a group, he is perfectly free to organize his own group, and not be excluded. What you are arguing for is that membership in a group is a right that precludes the group from being what it is meant to be.
December 8, 2009, 11:25 amEric Rasmusen says:
Here’s an economic take on the policy issue (sorry if I’m off-topic; I hope this is interesting enough to justify). If the student group only benefits students who are members, then there is no reason to subsidize it— if the benefits are big enough, the student members will pay for it themselves. The only reason to subsidize is if there are positive externalities. This will generally be true only of student groups that are reaching out to people outside the group.
Thus, the Courts have it backwards. *Only* groups with strong ideologies– religious or political– should be funded, because they’re the ones trying to affect non-members. The Black Students Association, the Ping Pong Team, and the Chess Club should *not* be funded.
December 8, 2009, 11:36 amlosantiville says:
“I can’t say how often these things happen, nor am I sure that anyone else can say it, either.”
Takeovers of this sort are very common. The Episcopal Church (by unitarians); Harvard by godless, atheistic communists (likewise most other universities); the Foundations; the Press; primary and secondary schools. All have been taken over by followers of an explicit left-wing ideology. They don’t call it Progressive Education for nothing. PE dominated US primary and secondary schools in the early ’30s.
The few counter examples are rare. Conservatives and/or libertarians have taken over Hillsdale, GMU Law (or was it born different?), The Southern Baptist Convention, and The Boy Scouts (but not the Girl Scouts).
December 8, 2009, 1:28 pmDJR says:
Eric,
The positive exernality is that black students, ping pongers, and chess players will be attracted to the university through its demonstrated commitment to their issues. People who aren’t necessarily interested in joining the groups might also have a more favorable impression of the university simply through the diverse interests of its students.
December 8, 2009, 3:20 pmmischief says:
It is not the mission of the university to attract black rather than non-black student, ping-pongers rather than non-ping-pongers, and chess players rather than non-chess players.
Indeed, insofar as students are attracted by these non-educational things, the mission of the university — the justification of its tax-exempt status — is undermined.
And the interests aren’t really diverse if they are so frail that the prospect of paying your own way makes you drop them.
December 8, 2009, 4:20 pmTim says:
The solution is to have a refundable fee. The fee is refundable here.
My club cannot get funding because the board will not fund a shooting club. Additionally, it is against the policy of the university to use the funding to buy firearms or ammunition (apparently, that applies even to the university’s rifle and pistol shooting club). Knowing this, we asked for money just for gas to travel, and they denied that, too.
I would have had the fee refunded to me (it’s $14 a semester), but it also covers the tenant union and student legal services, so it’s the only refundable fee that I don’t get refunded.
Thank you for linking to me, Professor Volokh, and thanks for bringing this idea to the public eye. I’m sure there are many more examples of political take overs of student organizations, but not all of them result in enough litigation to leave a paper trail.
December 8, 2009, 7:11 pmStephen M (ethesis) says:
I’ve actually litigated to a final verdict a case of this type. Had the current editor for Robert’s Rules of Order testify about what they meant (and he was ignored by the judge, which I rather found amusing). But I learned a lot about hostile capture.
December 8, 2009, 10:36 pmRequired says:
For a more recent example of this in student groups I think you have to go to a foreign jurisdiction, Canada had a scandal earlier this year with accusations of the conservative party try to take over Public Interest‘s student organizations on several campuses. Not sure whether there was any substance to the claims was but there was a lot of noise. If I could figure out how links work with the new format I’d link to it but since I cannot you’ll have to search for it yourself, lots of Canadian coverage though.
December 9, 2009, 12:53 pmSuzy says:
The crucial issue in these cases is that it’s University X’s Student Interest Group, rather than simply Student Interest Group. I don’t know whether Tufts, for example, receives any public funding; however, if you want to have the Tufts Christian Fellowship, then you get to abide by what Tufts says about how its student groups are authorized and funded. Otherwise, you can have the Christian Fellowship of people who happen to go to Tufts et al., and you can then freely associate with whomever you like, and pick your officers at will.
It’s sort of funny to me that student groups in these cases are sometimes considered so much more deserving of autonomous purity and protection than, say, the English Department. If English offers a course on Medieval Lit and the students organize a Medieval Lit fan club and apply for university funding, why should one be allowed to refuse entry to homosexuals while the other one cannot? Why should one be allowed to use university funds and facilities for its controversial speaker while the other one cannot? Why should one be allowed to refuse entry to modernist partisans while the other one cannot? The goal is to advance the educational mission of the university; otherwise, there is no reason to have student groups under the auspices of the university at all. The university gets to decide how that educational mission is best fulfilled, as long as it’s not unconstitutionally discriminating against its students. Nobody’s right to association is being violated in these cases; just the right to demand cash and perks.
December 10, 2009, 2:40 amDavid McCourt says:
“are there any examples in the real world of this actually happening?”
The Episcopal Diocese of Los Angeles, earlier this week.
December 10, 2009, 11:26 amWhat do you think that am I supposed to do with my life? » Evangel | A First Things Blog says:
[...] happy and harms no one else. We might even say that a group’s accepted rules for membership can be altered ad hoc if we so desire. (The ending parenthesis of the linked post is quite [...]
February 17, 2010, 7:40 pm