Friday, January 18, 2013

A Call to Abolish the Office of the Tennessee Attorney General

The office of Attorney General of the State of Tennessee is an anomaly. First, it is filled by appointment of the Supreme Court, a body before which the Attorney General is charged with representing the interests of the State of Tennessee. Second, it has a disturbing tendency to publish laughably bad advisory opinions.

One of the most visible of those duties is the promulgation of opinions in response to dubia propounded by state officials. Recently, one was submitted regarding HB3576, the 2012 act vetoed by Governor Haslam outlawing Vanderbilt's dissolution-of-the-monasteries policy. The Attorney General's office (over the Attorney General's name) concludes that HB3576 violates the First Amendment's right to freedom of association. Yes, the Attorney General concluded that a legislative act attempting to protect associational freedoms from interference by a private institution actually infringes upon the right to free association.

The Attorney General's Office predicates that conclusion on Boy Scouts of America v. Dale, 530 U.S. 640,
647 (2000). Boy Scouts, of course, is the decision holding that the Boy Scouts cannot be compelled to repeal their restrictions on admission of known homosexuals to certain leadership positions, because doing so would compel the Boy Scouts to associate with persons against their will. The A.G.'s opinion next cites to Wiley Mission v. New Jersey, No. 10-3024 (RBK/JS), 2011 WL 3841437, at *13--16 (D.N.J. 2011), a trial-court decision applying Boy Scouts to conclude that a state law could not compel a nursing home operated by a religious institution to have a home resident on its board of directors. The Attorney General concludes from these authorities that a law prohibiting a private institution from enforcing an all-comers policy on subordinate associations within it impermissibly compels the institution to associate with people against its will.

This is a shockingly poor example of legal reasoning.

Boy Scouts and Wiley Mission---by the Attorney General's own admission and description---concern membership in the plaintiff institution. The private group in those cases said "we choose to limit the scope of our private association to certain people." The right to make that choice and enforce it via one's private group is commonly understood to be guarantied by the First Amendment (at least until one opens up a club house). But this is not what Vanderbilt says at all. Rather, Vanderbilt's statement is "specified conduct is a prerequisite to use of campus facilities and access to otherwise freely available benefits." Vanderbilt is not associating with student groups, because the students who comprise those groups are already Vanderbilt students. Furthermore, the parts of Vanderbilt itself capable of associating or being associated with---its board, faculty bodies, colleges---don't "associate" with student groups or student-group leaders in any meaningful way. The president of Vanderbilt Catholic didn't have an ex officio seat on the board of directors, or a right to harangue the School of Medicine. Rather, the student who could have been president of Vanderbilt Catholic was already on Vanderbilt's campus: the rights, privileges, and (most relevantly) interaction with other members of the university community that he enjoyed qua student would not have been increased by his position at the head of a student organization.

Before moving on, permit me to preempt two responses. First, the idea that use of Vanderbilt intellectual property constitutes an association. Perhaps it does: perhaps there is case law out there standing for the proposition that the right to use Vanderbilt trademarks enjoyed by sanctioned students groups constitutes a constitutionally significant form of association. But the A.G.'s opinion is not predicated on that ground; it certainly does not appear in the opinion's summation of Boy Scouts and Wiley Mission. Indeed, given the existence of an entire body of intellectual-property law dedicated to the question of implied association based on mark usage, I find the thesis questionable at best. Furthermore, nothing appears on the face of the facts that suggests that student groups receive a per se license to use Vanderbilt's name or marks.

Second, there is the issue of money. I find it unlikely that anybody really gives a hang about funding in this debate. But even if they do, universities constantly disclaim the idea that their financial support of student organizations transforms student speech into university speech. Above that, in light of Title IX, it seems wholly risible to claim that the state cannot compel an educational institution to spend money for state-specified purposes regardless of the school's desire to serve those same purposes.

The much apter analogy is that the university is serving in this case as a forum. It permits students to meet in university spaces, to advertise via university communication media, and to access the university's logistical apparatus. Maybe there is a compelling body of case law that prevents the state from compelling private fora from discriminating on  association grounds. But that body is not headed by Boy Scouts. If this is the best the Attorney General can do, it is not an office this State needs.

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