Not okay to discriminate in private

2008-05-15 00:00

Several white journalists were recently barred from attending a briefing with Jacob Zuma at an event hosted by the Forum of Black Journalists, on the grounds that black journalists need a forum from which whites are excluded in order that they may discuss issues confronting black journalists in private. Surely the exclusion of white journalists amounts to impermissible racial discrimination? And are there not measures that could be taken to ensure that the FBJ and other groups do not racially discriminate in future?

The right to freedom of association is protected in the Bill of Rights of the South African Constitution. The principle of freedom of association means that individuals are free to form groups the rules of which reflect the wishes of the members. In practice, every liberal state permits associations to engage in practices that would ordinarily violate the core liberal principles of liberty and equality. We permit churches to instruct their members not to read certain books or watch certain films, even though this would ordinarily amount to censorship. We also tolerate associations whose rules mandate unequal treatment for men and women — the Catholic Church, for example, reserves the ministry for men.

We permit these associations and tolerate practices that are often distasteful because people should be free to conduct their affairs without interference from the state.

The distinction between the private and the public sphere is important here. Should the Forum for Black Journalists be considered to fall within the private sphere or the public sphere? The FBJ will no doubt characterise itself as a group of friends associating with individuals they find congenial. It will say that the FBJ is private in nature. Others might argue that journalism is a public profession and that inviting public, political figures to give an address makes the FBJ public in nature.

The South African Human Rights Commission has ruled that the blanket exclusion of white journalists from membership of the FBJ is unconstitutional. In making this decision it has presumably decided that the FBJ is more public than private.

Had the SAHRC decided against a legal ban, this kind of racial discrimination could have been opposed by other means. In thinking about alternative ways of combating such discrimination, consider two examples from the United States. In the first, the trustees of a fundamentalist Christian university, the Bob Jones University, refused to admit blacks as students on the grounds that it would be against their religious beliefs to do so. The government, in the form of the Internal Revenue Service, threatened to rescind the university’s tax exempt status. The trustees responded by changing the admissions policy of the university, admitting blacks but forbidding inter-racial dating or marriage within the student body. The IRS withdrew the university’s tax exempt status, a decision which the U.S. Supreme Court later upheld.

What the Bob Jones case shows is that associations conducting their affairs in ways contrary to core public purposes can legitimately be burdened. That is, the state is entitled to remove all forms of otherwise applicable public encouragement and favour, including all forms of financial subvention and tax exempt status.

The second example concerns a golf club in Alabama, the site of the Professional Golfers Association Championship. The founder of the club mentioned to a reporter that he refused to admit blacks as members of the club. In response, the PGA decided that in future it would hold tournaments only at clubs that are prepared to admit members of all races. The point is that even if the view was taken that there should not be an outright legal ban on racial discrimination of the kind practised by the FBJ and other similar voluntary associations, the state may be in a position to oppose discriminatory practices by imposing moral and financial pressure on such associations to change their rules.

• E-mail your query to EverydayEthics@ukzn.ac.za or fax it to 033 260 5092.

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