Freedom of dissociation

Almost lost in the usual shifting focus of the media has been the progress of the Education (Freedom of Association) Amendment Bill.

Recent discussion on Radio New Zealand revolved around the question of whether or not the existing right of students to form Students Associations over-rides the ability of individual students to choose with whom to associate (financially and structurally).

The relevant clauses in the Bill are the replacement Section 229:

New section 229 substituted

Section 229 is repealed and the following section substituted:

229     Voluntary membership of students associations

“(1)     No person, including any tertiary institution or any association of students, may require any student or exert undue influence on any student

“(a)      to become or not become a member of any association of students; or

“(b)      to pay any money to any association of students, or to any other person in lieu of such fees.

“(2)    No person, including any tertiary institution, may act in any way which conflicts with the sprit and intent of this section.”

It seems straightforwardly a matter of individual rights (and liberty). Why should students have to join an association and pay fees to it if they don’t want to?

I’ll start with an interesting defence of the right of freely chosen associations to have rules that restrict and constrain their members. It’s interesting because it comes in a decidedly libertarian book supposedly about the need to let the future take care of itself (apart from defending property rights, oddly – the future apparently can’t be completely left to its own devices).

Virginia Postrel, one time editor of Reason magazine, libertarian (or should that be ‘dynamist’) and author of The Future and Its Enemies (1999) has, in that book, a chapter defending churches’, sports clubs’ and, importantly, private companies’ rights to impose restrictions on the freedoms of those who ‘join’ them. The argument is simple: Since someone freely chooses those ‘memberships’ and could exit them anytime they wish, then constraints on the freedoms within them are permissible even in an otherwise free world. So long as we individually choose to constrain ourselves, even Isaiah Berlin’s much embraced notion of negative freedom can be put aside for the interim.

Certainly, exiting employment may come at a cost but such trade-offs are the stock in trade of standard (which is to say ‘neo-liberal) economics. So long as an individual is free to choose ‘membership’ of the employer’s company that employer is free to restrict the freedom of those employed within it. A moment’s reflection verifies that modern companies would be unable to operate if they were not able to restrict the freedoms of their employees in multiple ways (the defence being, if they don’t like it they can find another job).

It is interesting to apply this logic to the case of the Education (Freedom of Association) Amendment Bill. The fact that enrolling at a university, wananga or polytechnic (we’ll ignore the Private Tertiary Enterprises – but only for now) requires one to ‘associate’ in a Students Association and to pay fees is not, on this logic, in and of itself grounds for preventing even the most strict requirement or compulsion to join such associations.

According to Postrel, so long as there is at least some opportunity to opt out of a broad grouping of people (a church, company, etc.) all sorts of ‘compulsion’ are ok within that grouping. It is about as clear as it is possible to be that, in New Zealand, enrolment at a public tertiary institution is not compulsory. Clearly, education is compulsory at younger ages, but not at tertiary level.

So there’s no ‘liberty’ argument against compulsory Student Association membership, at least if we want to allow churches, sports clubs and employers to restrict freedom of association (or require association) as a criterion of ‘membership’.

I suppose it could be argued that, while private groups (churches, companies, etc.) have a right to restrict freedom of members, the same isn’t true of public institutions – they should exercise extreme restraint over any restriction of freedom because they embody the coercive powers of the state.

But that doesn’t make sense. As I’ve pointed out, tertiary education isn’t compulsory so the coercive powers of the state don’t come in to it.

Further, there are plenty of competitors for public institutions at tertiary level – the so-called PTEs (Private Tertiary Enterprises). And, while there are no private universities here, attempts have been made to establish them. But, once again, nobody is being forced to go to University. Also, if they really wanted a private university option there are plenty elsewhere – some of which are very prestigious.

The question of private universities raises another interesting aspect of this bill. It applies to “any tertiary institution”, which presumably means private as well as public. Does Sir Roger Douglas really mean to inhibit what a private provider might require of its students? If part of enrolling at a local branch of Harvard University was membership of some association or other, would Douglas ban such a requirement?

What seems clear is that the Education (Freedom of Association) Amendment Bill has little to do with a general concern for defending negative freedom in the many institutions – public and private – in New Zealand (i.e., it’s not about human rights and liberty).

It must, therefore, be about something else.

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