Submission Date:
Question:
I’m part of a professional library association that is a 501(c)(3), like the American Library Association, Association for College and Research Libraries, and the Society for American Archivists. Occasionally, the group issues statements in solidarity with various groups, for instance, in protest of police violence against Black people and against Anti-Asian violence. Most recently, the organization identified the hostility of the current political climate against diversity, inclusion, equity, and accessibility (values the organization holds as part of its mission) as a national threat. Are there legal or ethical boundaries for issuing such statements that we should be aware of? Would a statement by the president of the organization, not necessarily reflecting the views of the board/organization, for example, be safer for the organization and/or the president? If we speak out in favor of one group, do we have to do so for every group? There have been no statements in solidarity with women or the gender-queer community, for example, in spite of the violence and bias such individuals face
Answer:
This is an area that (literally) tears groups apart.
There is no one right answer to this, but countless examples show that the process for arriving at an answer is just as important as the decision to issue a statement (or not) of support (or opposition).
For a professional association, that process starts with the founding documents of the organization: the charter or certificate with its “purpose,” its bylaws, and any applicable statement of ethics or law relevant to its foundations.
If the purpose, bylaws, or ethics apply directly to an issue, the obligation (or justification) to speak up is plain.
For example, a professional organization of lawyers issuing a statement objecting on ethical grounds to calls to impeach judges based on duly issued judicial decisions can cite the relevant constitutional provisions, law, regulations, and ethics—as well as respect for the rule of law—to justify issuing the statement.
On the other hand, if the purpose, bylaws, or ethics of the organization don’t have a direct correlation, it’s a harder sell.
For example, the same professional organization of lawyers issuing a statement in opposition to contemplated restrictions on TikTok might have to work a tad harder to justify a statement. But a different organization of lawyers—one created to promote advances in technology, communications, and free speech, for instance—might find it easy to justify.
When an immediate connection to the issue at hand is not easily discernible, it is up to leadership to develop an iterative process to discern the preferences of the members. This is cumbersome and, for matters perceived as urgent, can result in leadership being criticized as “too slow,” but it is the only way to draft and issue a statement that the organization can truly support.
This “iterative process” is where things get tough: some members will want immediate and strong statements. Others will disagree, either because they see the issue differently or because they think it is not the place of that particular organization to take a stance. People will argue, and hopefully, they will keep it civil—but even when they do, this is where things can fall apart.
To minimize the chances of that happening, it is essential to develop a good iterative process.
To do that, leaders should carefully solicit and receive input from members on that controversial topic. This can be done by creating a committee or working group to frame the question: to make a statement or not to make statement?
Because it was a cultural touchstone, let’s take the example of issuing a statement regarding the murder of George Floyd. His hideous murder by law enforcement inspired many organizations to issue immediate statements, even if they were not directly involved in civil rights or law enforcement.
In the case of George Floyd, this decision was based on some version of the question: If our fundamental purpose doesn’t require us to stand against this horrible murder by people charged with protecting public safety, what are we for?
For an organization that did not feel an immediate ability or call to issue a statement, the rubric for deciding whether or not to make an immediate statement would be:
- Does the issue directly touch on a fundamental purpose or foundation of the organization?
- If yes, is leadership authorized to issue statements without further approval from the governing body or membership?
- If yes, does the statement to be issued serve the purpose of the organization?
If the answer to any of those questions is either “no” or “unknown,” then further assessment (or drafting) through an iterative process is needed.
Because an ad hoc iterative process can be cumbersome, some organizations have officers, public relations committees, and/or administrative teams who are empowered by policy (adopted by the governing board) to assess and develop timely statements. For organizations that want to be nimble when reacting to public events, if such a structure is not in place, it is time to create one.
The structure created (whether permanent or an ad hoc committee) will ask deeper questions:
- Even if the issue doesn’t directly touch on a fundamental purpose or foundation of the organization, is there a compelling reason for the organization to speak up?
- If yes, what is that reason?
- What, if any, are the risks of speaking up?
- Do those risks outweigh the reasons?
- What are the hoped-for results of issuing a statement? How will those results be assessed to inform future decision-making?
- If all things point to issuing a statement, who should be authorized to issue the statement, and who will address follow-up?
By exploring these questions, the organization can assess and articulate its position. To ensure transparency and assure members of how the decision was reached, the answer to every question should be documented before the governing body authorizes the issuance of a statement or decides not to issue one.
Here is where the legal aspect comes in.
Because governing boards are the fiduciaries of the organizations they govern, the documentation assembled should show that the decision about issuing a statement—whatever it is—is based on the best interests of the organization.
Is this cumbersome? Yes.
Is it essential? Yes.
Will an organization engage in the most careful process ever and still risk alienating some members? Absolutely. Could a well-documented decision still create reputational damage? Yes. That is the price of admission for addressing serious questions. Not everyone will agree, and not everyone will be happy, but the board will be able to show it did its duty (regardless of impact).
With that said, here are answers to the specific questions:
Are there legal or ethical boundaries for issuing such statements that we should be aware of?
Yes—the founding documents, bylaws, and policies of the organization should be considered, and the decision should be rooted in the best interests of the organization.
Would a statement by the president of the organization, not necessarily reflecting the views of the board/organization, for example, be safer for the organization and/or the president?
No. The leader of an organization—if speaking in that capacity—speaks for the organization. If they are making their own personal statement, it should be characterized as such, which makes it a nullity for purposes of this issue.
If we speak out in favor of one group, do we have to do so for every group?
That depends on the needs of the organization. An association devoted to biology as a profession may want to speak up on every matter that relates to the profession, including groups that may have less access to a path towards that career due to certain quantifiable factors. On the other hand, an association devoted to biology may maintain a policy of only “speaking up” by creating a rigorously peer-reviewed publication,[1] basing its decision on ensuring that the credibility of the organization’s publication can’t be undermined by any other activity. While either decision can be criticized, either is justifiable and appropriate (legally speaking).
The only “wrong” decision here is if an officer, board member, or board “goes rogue” and issues a statement on behalf of the organization without a clear justification or authority. Such action can be the basis for removal, and that is a whole other type of controversy.
Thank you for this series of thoughtful and timely questions.
[1] Biology Now! or Biology Today or Biology Forever.
