Monday, February 26, 2007

The DePauw Sorority Purge and Truth in Advertising

It was widely reported over the weekend that the national organization of the Delta Zeta sorority "evicted" 23 members of the DePauw University chapter because they were less attractive than the unpurged members. The national organization denies that appearance was the basis for the purge but the incident drew fire from both within and outside DePauw. A few reactions:

1) To my knowledge, neither Indiana law nor DePauw's internal non-discrimination policy specifically forbids appearance discrimination, although the university may have rules requiring sororities and other student organizations to be open to all students. (Searches of the DePauw website yielded a large number of pages no longer available.) Certainly, federal law doesn't forbid appearance discrimination. The stories (including one in the NY Times) indicate that the purge also targeted minority students, which undoubtedly would violate various prohibitions. For my purposes, however, I'll focus on the legal, if odious, appearance discrimination.

2) When the Supreme Court held in Boy Scouts v. Dale that the Boy Scouts had a First Amendment right of (non)association to exclude members based on their sexual orientation, the majority allowed that an organization could crystallize a discriminatory membership policy in the course of litigation. I wonder whether a truth-in-advertising rule might not be a better way to trade non-discrimination against associative freedom. Under such a rule, you can be the Straight Scouts, but only if you acknowledge it up front. Likewise, Delta Zeta could be the "beautiful sorority" or the "beautiful thin white sorority" but again, only by telling the world that this is who they are. Many people in fact discriminate even if they're unwilling to admit it. Thus, to give two examples: a) white people are more likely to tell pollsters that they plan to vote for black candidates than actually to do so; b) politicians who support blatant discrimination against lesbians and gays (e.g., same-sex marriage bans) will say (when speaking to a national audience) that they personally oppose discrimination. Making people put their discrimination where their mouths are might lead to less discrimination.

3) Policing a truth-in-advertising policy would be tricky because organizations may not realize exactly what their membership criteria are until challenged. Before the first vegan or observant Jew applies to join Delta house, the frat may not have a policy of opposing vegan and observant Jewish members. But once they think about it, they conclude that a vegan or kosher member would be unable to contribute to or enjoy the nightly pig-roast that is the center of frat life. Just how far in advance must the frat decide upon the exclusion? I don't have a perfectly workable answer but perhaps it would be fine to allow ad hoc grounds to emerge for discrimination, but only if the organization fully owns them. Thus, a condition of the Boy Scouts winning their case is, or should have been, that they thereafter advertise their homophobia (or thereafter change the policy in a verifiable way). Likewise, in the Hurley case, the Boston St. Patrick's Day Parade should have been called something like "the all-heterosexual and closeted homosexual Boston St. Patrick's Day Parade."

4) The solution proposed above in 3 (which is not entirely serious but not entirely a joke either) is only necessary where some statute or other source of law provides for a right of access, of course. But with the truth-in-advertising option, it should be easier to enact broad public accommodations and anti-discrimination laws and policies without fear that they will unduly restrict freedom of (non)association.

16 comments:

Craig J. Albert said...

A letter from the president of DePauw to the national president of the sorority -- here's a link -- describes the dispute primarily in terms of the impact on finding new housing for the students in the middle of the year, as well as the stress of having the national's decision come shortly before exams.

Michael Yuri said...

"white people are more likely to tell pollsters that they plan to vote for black candidates than actually to do so"

There's at least some evidence suggesting that this isn't true (or at least, it's not currently true):

http://www.reason.com/blog/show/118736.html

For all I know, there may be solid research out there showing that this does occur, but without seeing some good evidence I think people should be hesitant to propogate the idea. If the idea is false, then it seems likely to hurt black candidates by causing people to discount their actual support as shown in poll numbers.

Sorry that this is tangential to the main point of your post, but it seems particularly relevant given Obama's presidential campaign.

Michael C. Dorf said...

Thanks for the link. I'll admit that this is one of those "facts" that I just thought I knew but would be delighted to discover probably isn't true. I just spent 5 minutes on WestLaw and found lots of people repeating the claim, but mostly they cite newspaper articles dating back to the late 80s and early 90s, which simply quote pollsters who assert the phenomenon is true. Based on this admittedly inadequate literature research on my part, I'm tentatively persuaded that the phenomenon doesn't now exist. Hooray!

egarber said...

Mike said: Making people put their discrimination where their mouths are might lead to less discrimination.

That’s an interesting observation. Our 7-year-old is in Cub Scouts, and it’s been a very positive experience for him. He’s a little timid, and it has helped to bring him out a good bit.

[My wife and I think the sexual orientation “policy” is ridiculous and cold-hearted, and we strongly disagree with it. But we look at it the way a Catholic might disagree with the Church’s stand on orientation – i.e., you don’t have to agree with all formal organizational decisions to be an advocate for the larger experience (or a potential change agent).]

But back to Mike’s point, in no shape or form does sexual orientation ever even remotely emerge as an issue during our outings and meetings. Thus far, our experience has involved visiting nature centers, taking fire station tours, doing activities and racing cars. And even though it’s a “faith-based” organization, our activities have been purely secular (thank God – oh wait :)).

The point is that if the officials had to actually advertise the Boy Scouts’ intolerance, they would bear the burden of vetting their positions among grassroots members. Orientation is so far removed from anything the scouts actually DO that I’m guessing a lot of folks (maybe not here in the deep south) would be fine withOUT such a policy.

Calico Cat said...

"The stories (including one in the NY Times) indicate that the purge also targeted minority students"

Did you see the picture of the Asian girl? She was ugly.

There's no evidence of race discrimination here. We can assume that if she was a pretty Asian girl she'd be one of the 12 who were allowed to remain.

Adam P. said...

Although I don't support appearance discrimination laws generally as a matter of law, I think that this case is bothersome not because of the fact that the discrimination occurred, but because the national outside organization is the one who did it. Sororities make their decisions, implicitly or explicitly, based on appearances all the time. If these girls had never been admitted to the sorority by the local chapter, because they looked "nerdy" or something, there would be no story.
The fact that they were *in* and kicked out, and kicked out by the *outsiders* seems to be the shocker here. Usually, we can avoid social organizations that reflect values we don't share; I would never join a club that /wouldn't/ have me as a member.

Amos Blackman said...

"Making people put their discrimination where their mouths are might lead to less discrimination."

Not to rehash a disagreement we had last year, but I don't buy the "truth in advertising" approach for a second.

I believe that Professor Dorf overestimates the power of so-called bad publicity. He might stop patronizing a restaurant that calls itself "Latinos Served Last," but there are many people who wouldn't. Told to choose between changing their ways and changing their label, most people will choose the latter every time.

Certainly, "subtle" discrimination can be just as destructive as overt discrimination, and it is certainly more difficult for our legal system to sanction. But an approach that protects those who overtly discriminate over those who do not inherently fosters discrimination.

Such labeling turns descriptive discrimination into prescriptive discrimination. Since most groups are self-selecting as it is, it is unlikely that such a policy would force a group to abandon its traditional discriminatory aspects. Instead, members who were previously indifferent to such a distinction will be forced to adopt it.

The Boy Scouts' official position, created by the jurisprudence of Dale, has forced people like egarber to weigh the positive aspects of Scouts against teaching his son to stand against homophobia, and he has come to the conclusion that homophobia is acceptable in the situation. Even if such a decision doesn't affect his son, as he suggests, it certainly affects him. Perhaps he would take a different position if the Boy Scouts had been forced to officially rename themselves, but given his obvious awareness of the issue, it seems quite possible he would arrive at the same decision. Certainly there are many others who would.

There would be no reason for any majoritarian discrimination in society to perish under such a policy. Instead, it would be reinforced by forcing those who previously had no inconsistency in their beliefs to choose one belief over the other. Christians must choose to between their god and the humanity of gay people. Republicans must choose between democracy and peace. Lawyers must choose between ethics and morality.

Without labels, change is fluid. The Delta Zeta sorority could return to being full of socially awkward scientists as soon as there is a change in leadership. If their current leadership could protect themselves simply by advertising "truthfully," there is little chance that it would attract such open-minded new leadership. Inertia is an incredibly powerful force. (Please excuse the bad physics of the sentiment.) Any leadership taking a discriminatory position will have the power to lock it in place for a long time.

Why should we encourage that?

Mortimer Brezny said...

That girl was ugly. I have to say, when I glanced at the photo and the headline, I thought: "What kind of lame-o sorority has such ugly girls in it?" Then I thought, "Why is the ugliness of a lame-o sorority worthy of a newspaper article?" Why must we morally judge people for "discriminating" in a morally insignificant way. Part of sorority life is socializing and being popular and especially for girls that involves being attractive or at least making an effort. That girl was just fearsomely hideous-looking and the NY Times photographer knew it. Indeed, everyone who saw that picture knew it. The article was premised on it, as if to say, "But she's still human!" If you think about it, it's the still part that's offensive. Certainly more offensive than throwing her out of the sorority for being ugly. At least that's honest and it doesn't question her dignity as a human being (who happens to have a beastface).

egarber said...

Amos Blackman said:

"Perhaps he would take a different position if the Boy Scouts had been forced to officially rename themselves, but given his obvious awareness of the issue, it seems quite possible he would arrive at the same decision."

Actually, in our case, we would not arrive at the same decision. If Scout officials were able to generate the vast grassroots approval necessary to make homophobia a formal label, we'd be gone.

And that's the point, I think. Right now, we sort of apply a personal Dale test: we ask ourselves if the Scouts are in any way infringing on OUR "expressive association" (values we want to teach our son). And like I said, there's nothing even remotely like that going on, so we take part in the activities.

BUT, if the Scouts wore the label, if say, we started every meeting with some sort of anti-homosexual pledge, we'd be on a different plane. We'd leave, and I think others would too. Maybe most importantly, the organization would be put on the defensive; it would have to collectively decide what it really values.

"The Boy Scouts' official position, created by the jurisprudence of Dale, has forced people like egarber to weigh the positive aspects of Scouts against teaching his son to stand against homophobia, and he has come to the conclusion that homophobia is acceptable in the situation."

We haven't concluded that homophobia is "acceptable", any more than one could say that a proud member of the U.S. Army must by definition think it's acceptable (the military is "officially" homophobic). We are members of an organization that has made a bonehead decision, a decision nobody has to defend publicly because it's basically hidden now.

BUT, if the label was pronounced, we'd be engulfed I think. The policy would seep into everything, and our personal "expressive association" standards would be violated. That might be a subtle distinction, but it is substantive, imo.

Rather than creating a kind of "prescriptive" comfort, I think the "truth in advertising" approach would spawn alternatives -- where a competing "tolerant boyscouts" could emerge and attract people like us. If a food product advertises that meat is the central ingredient, others will see the opportunity to sell alternatives: Morningstar, Boca Burgers, etc.

Why do we think moderate Republicans are so desperate to keep the party platform out of the mainstream? I think it's because they know folks will bolt if the party becomes defined by it (maybe this is already happening). Many in the party would rather speak in code -- Dred again, etc. -- to avoid alerting the masses about the true policy implications.

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