On Sunday, Brandon Camhi, editor-in-chief of the Stanford Review, rose before the ASSU Constitutional Council to argue that the Stanford Students of Color Coalition (SOCC) should be forced to disclose certain records regarding their endorsements for student government elections. The case at hand, Stanford Review v. SOCC, was a byproduct of an ugly student government election season. On April 13, the Review published allegations that, during an endorsement meeting, SOCC had asked a student running for ASSU Senate, “given your strong Jewish identity, how would you vote on divestment?” The Review also reported rumors that SOCC had required some of its endorsees to sign a contract prohibiting them from associating with Jewish student groups.
Following his April 13 article, Mr. Camhi requested that SOCC provide him with a copy of the contract SOCC endorsees had signed, with an endorsee’s signature on it. He also asked for all notes taken during SOCC’s senate and executive endorsement meetings. SOCC did not provide all the materials that Mr. Camhi had requested, and Mr. Camhi responded by filing a complaint on behalf of the Review against SOCC with the ASSU Constitutional Council (our student government’s equivalent of the Supreme Court).
Mr. Camhi’s complaint is based on Article I, Section 7, Subsection 1 of the ASSU Constitution (henceforth referred to as “the Disclosure Clause”), which requires that “Association entities” disclose records for public scrutiny. That clause reads:
All records of any Association entity must be available for scrutiny by the public with the exception of proprietary business information of Association businesses, financial records for non-funded accounts of organizations banking with the Association, Legal Counseling records, and personnel records of employees. Every other Association organ must allow access to records. This access must be open to all and subject only to administrative requirements to safeguard the information and to provide access in a timely, efficient manner.
Mr. Camhi asserted that SOCC is a Voluntary Student Organization (the official name for student groups at Stanford) and that all VSOs are “Association entities.” Thus, he argued that SOCC is subject to the requirement that it disclose its records. SOCC disagreed. While not conceding that it is a VSO, SOCC argued that VSOs are not Association entities for the purposes of the Disclosure Clause. The main issue at stake, then, is whether VSOs may keep their records private.
As I think Mr. Camhi himself may be aware, the Stanford Review has virtually no case against SOCC. The Review is proposing an implausible reading of the clause that could have potentially disastrous results for campus groups’ right to free association. A sound interpretation of Section 7 would not consider VSOs subject to the disclosure requirement, and would therefore not require SOCC to disclose all of its records to the public. The Review’s complaint against SOCC should be dismissed.
Free Assembly and the ASSU Constitution
Article I, Section 3, Subsection 2 enshrines the principle of free association within the ASSU Constitution. Modeled on the First Amendment of the U.S. Constitution, it states,
The Association shall enact no legislation respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Association for a redress of grievances.
The U.S Supreme Court has interpreted the First Amendment to protect against exactly the sorts of coercive disclosures sought by the Stanford Review. As the representative for SOCC rightly noted during oral arguments, in a 1958 case, NAACP v. Alabama, the Supreme Court held that allowing Alabama to subpoena NAACP membership lists would effectively compromise the rights of NAACP members to freely associate without fear of recrimination. Thus, the Court found that the subpoena violated the First Amendment.
Now, the ASSU Constitutional Council has previously held that federal law is not binding on the Council. However, since Article I, Section 3, Subsection 2 of the ASSU Constitution is almost identical to the First Amendment, an authoritative reading of the First Amendment is a reasonable place to look for interpretative guidance. Furthermore, the Supreme Court’s decision in NAACP v. Alabama is non-controversial. The ruling was unanimous, and one of the Court more conservative sitting justices, John Marshall Harlan II, was the opinion’s author. NAACP v. Alabama has endured as precedent for almost 60 years.
One doesn’t have to be too imaginative to see how a rejection of the NAACP v. Alabama doctrine could chill freedom of association on campus. Fraternities and sororities both have sensitive deliberations during rush, which they are loath to make public. Rather than keep records of these meetings, these organizations might choose to eschew documentation altogether if they are subject to the disclosure sought by the Stanford Review. Club sports teams might follow suit, as could any other organization that makes membership or endorsement decisions. The debate team, theatrical societies, and political clubs might all feel the need to conduct their meetings without notes, or forego deliberative proceedings entirely. Students might decide to make club decisions outside the context of group meetings, so as to avoid exposing confidential information. Most perniciously, students could request membership lists from groups such as the Kardinal Kink and the Anscombe Society, some of whose members may prefer to remain anonymous. These organizations would be precluded from documenting membership if they wanted to ensure their members’ privacy, and this would certainly infringe upon their natural rights of association.
The larger point is that Stanford student organizations shouldn’t have to fear that their private deliberations will become public. LGBTQ groups should be secure in the knowledge that their confidential discussions will not be subpoenaed by campus publications. There is no reason that the Stanford Atheists’ membership list should be part of the public record, or that the Stanford Islamic Society’s deliberations should be available for all Stanford students to review. If the Review were to win this case, running a selective or controversial student group would become far more difficult, and some students may decide it’s not worth the effort. When that happens, freedom of association has been effectively chilled. With these consequences in mind, it seems clear that the Council should hold student group deliberative privacy to be within the scope of Article I, Section 3, Subsection 2.
During oral arguments, Mr. Camhi admitted that his reading of the ASSU Constitution might be undesirable. He said a constitutional amendment might be needed in order to remedy the defects of the Disclosure Clause and protect student privacy. He further argued, though, that the current language of that subsection is clear as written, and that the Council has an obligation to enforce that language, regardless of its conflict with other Constitutional provisions.
It’s true that if a section of a constitution is clear, it should be enforced despite conflicts with more abstract sections. For instance, the Supreme Court has held that the Due Process Clause of the Fifth Amendment requires the federal government to provide all citizens with equal protection of the laws, but the U.S Constitution clearly contradicts this standard in at least one place. It holds that a citizen of California does not have the same voting power as a citizen of Wyoming, because both get to elect two senators despite California’s much larger size. The federal courts continue to enforce this provision, though, because the explicit language of equal state representation in the Senate trumps the vagaries of the Fifth Amendment. Thus, if Mr. Camhi is correct in saying that the Disclosure Clause in the ASSU Constitution has a clear and enforceable meaning, that meaning should be favored over the indirect implications of the freedom of association provision.
Brett Parker, a sophomore studying political science, is the law editor of Stanford Political Journal.