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After months of criticism over a mandate FIRE and others have denounced as a “deeply objectionable” attack on freedom of association, Harvard University President Drew Gilpin Faust said she may consider alternatives to the controversial new policy that will create a “blacklist” of members of off-campus, single-sex social clubs starting next fall. But Faust’s latest comments, made in a recent interview and reported today in the Harvard Crimson, also reveal the Harvard administration’s misguided understanding of freedom of association generally—views that, while troubling, could provide insight on a path forward for First Amendment advocates at the Ivy League institution.
“I’ve never said that this policy is a perfect instrument,” Faust told the Crimson on Thursday of the new rules she announced in May barring members of single-gender, off-campus clubs from captaining sports teams, holding leadership positions in recognized student organizations, or getting necessary administrative recommendations for Rhodes and Marshall scholarships. While Faust said the intention behind the policy was to “marginalize the power” of clubs who discriminate on the basis of gender, as well as combat alcohol abuse and sexual assault, professors at a faculty meeting last Tuesday expressed dismay that the policy—with its sweeping implications—had been adopted without sufficient faculty or student input.
In response to the outcry, Faust now finally seems receptive to input on whether Harvard should restrict its students’ civil liberties. “I think this is a time for conversation about what alternatives there are,” she told the Crimson. “If people want to propose alternatives, that ought to be a matter for discussion in the Faculty meeting.”
One professor who has already done so is former Dean of Harvard College and current Harvard professor Harry Lewis, who submitted a motion resolving that “Harvard College shall not discriminate against students on the basis of organizations they join.” Lewis called for faculty to vote on that motion at the group’s next meeting in December.
But while Faust’s latest remarks may seem to signal hope for freedom of association at Harvard, her other comments to the paper reveal deep confusion in the Harvard administration about the function of freedom of association, one of our nation’s most basic and fundamental rights. The Crimson reports:
Responding to the prevalent critique that the penalties infringe on students’ freedom of association, Faust countered that all-male organizations restrict women’s liberties.
“My freedom of association to join the Porcellian does not exist, just to start with,” she said, referencing Harvard’s oldest final club.
Moreover, Faust said, the “freedom of association” argument has historically been used to defend discriminatory organizations and policies.
“Freedom of association is a concept that was used widely in the white South to combat Brown v. Board [of Education], to combat the Civil Rights Act. It’s an argument that has been used to sustain and support discrimination,” she said. “It gives me chills to see it used in this instance as a defense of what I see as exclusionary policies on the part of organizations in the College.”
What President Faust omits from her historical justification is that freedom of association is, and was during the Civil Rights Movement, one of minority advocates’ most powerful tools for reform.
Exhibit A is the 1958 Supreme Court case of NAACP v. Alabama, in which the state of Alabama attempted to thwart political efforts by the National Association for the Advancement of Colored People (NAACP) by requiring the organization to release a list of its members and agents to the state. As the Court noted in its opinion,
[The NAACP] argues that, in view of the facts and circumstances shown in the record, the effect of compelled disclosure of the membership lists will be to abridge the rights of its rank-and-file members to engage in lawful association in support of their common beliefs…
Petitioner has made an uncontroverted showing that, on past occasions, revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.
That’s legal-speak for “1958 Alabama was a dangerous time and place to be a member of the NAACP.” The reason that the membership of Alabama’s NAACP (and likely those of other states, had the government’s gambit worked) was spared the exposure that could lead to exactly this sort of treatment was that the Supreme Court unanimously ruled for the organization on the grounds that Alabama’s requirement would violate the First Amendment right to freedom of association.
In 1963’s NAACP v. Button, the Supreme Court once again held in favor of the NAACP’s right to freedom of association in the course of its legal attempts to enforce desegregation as mandated by the the landmark 1954 decision, Brown v. Board of Education. The Commonwealth of Virginia had argued that the NAACP’s efforts to recruit plaintiffs for lawsuits aimed at ending segregation in schools and elsewhere constituted “improper solicitation of…legal or professional business.” Once again, the First Amendment and freedom of association came to the rescue, with the Court ruling that the NAACP’s activities were “modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit.”
Yet President Faust, at least as reported in the Crimson, presented freedom of association as though it should be viewed with suspicion rather than as a fundamental and liberating source of American freedom. That might be excusable if Faust was not a historian, specifically a scholar of “the American South.” Surely she knows enough about the Civil Rights era to know that, while freedom of association arguments were made on both sides, freedom of association was absolutely vital to the successes of the Civil Rights Movement.
These landmark civil rights decisions join a long string of cases in which freedom of association protected those accused of being Communists, including in academia.
It is imperative that Harvard take an honest look at the historical, legal, and philosophical reasons for honoring this critical American right. While it is unfortunate that this did not happen when the policy was being conceived behind closed doors and away from the prying eyes of most faculty and students, President Faust’s potential opening here—combined with continued dedication of concerned Harvard community members—suggests the school may have a second chance at getting it right.
We hope, ultimately, that this revelation marks the beginning of the end for this dangerous policy.