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Monday, March 13, 2006

Rumsfeld V FAIR - The Solomon Amendment Case

I haven't commented on this before, because what I have to say will offend some people I really like. The SC's opinion can be read in full here. Rumsfeld V FAIR was a stinging rebuke of the movement in law schools to deny military recruiters access to law school campuses, and I thought it spoke for itself.

But I was pushed over the edge by Ann Althouse's (whom I like a lot) post regarding the case and the reactions of law school professors to the SC's ruling. She quotes from the Liptak column and remarks:
I don't see how making an argument implies that you don't realize it's a difficult argument. And I don't think it's clueless to decide to go forward with an argument that you know is a big uphill battle. When you're fighting for a principle, even a losing battle can be worthwhile.

As for that ridiculously obvious justificatory instrument business... It doesn't explain why not one Justice even concurred to say something nice about the lawprofs. And it doesn't acknowledge that military power is one of the things that is authorized by the Constitution the Justices must interpret and enforce.
In the comments we find out that she voted for the lawsuit, and it becomes clear that she is somewhat on the defensive:
People go to courts because they think this is the kind of decision that should NOT be governed by democratic choice. To say we should go to the legislature is to beg the question whether there is a right. The litigation is ABOUT whether there is a right. We were entitled to ask a court whether there was a right. It was not a frivolous question or a naked attempt to move a political dispute into the courts.
and furthermore:
We were only asked to vote as a faculty to be included among the plaintiffs. I remember the main topic of discussion being whether there was any such entity as the "law school faculty." That is, there's the law school, but is the faculty a separate entity or just individuals? Other than that, our support was not based on the legal arguments but on the cause itself. It was left to the lawyers handling the case to make the best arguments. We didn't put our names in because of our analysis of the legal issues.
!!!! I find that unbelievable. If you didn't believe you had a case, why bring it? A commenter questions her and she responds:
TWWren: I do not remember much discussion of what the legal theories would be. We joined as parties. We were not acting as the lawyers. We were defending a policy we wanted to follow, and it was up to the lawyers to develop the legal arguments.
It's more than odd to me that a law professor would think that a consideration of whether the policy he or she wanted to follow were constitutional was discretionary. It seems to me to be the very first point that should have been considered.

From start to finish, this whole case was a farce on a Shakespearean scale. The Supreme Court showed no respect to the law professors because they deserved none. The legal arguments were a misapplication of precedent in the extreme, and their moral position is unworthy of respect as well. They should be ashamed.

As the SC implicitly pointed out, the entire argument amounted to FAIR's claim that their deeply rooted moral and legal disgust at the military's "Don't ask, don't tell" rule, which resulted in the policy of barring legal recruiters from campus, is so intrinsic an expression of their constitutional freedoms that it trumps Congress's constitutional powers to control the raising and regulation of the military. Now, given that it is constitutionally well-established that Congress has the power to impose the draft and require adults to register for it, FAIR's claims were obviously ridiculous.

How can it be that a Bill of Rights which does not protect an 18 year-old from having to register with Selective Service, being drafted and subjected to military law (which does not allow for those first amendment rights) can be interpreted to allow law professors to bar recruiters from campus? This is the most feeble contention possible. It is also either an awesomely arrogant contention or a contention arising out of an incredible degree of carefully acquired learned constitutional stupidity. This should make us all contemplate the bizarre nature of what must be currently taught in many constitutional law classes. As Roberts wrote:
FAIR argued that this forced inclusion and equal treatment of military recruiters violated the law schools’ First Amendment freedoms of speech and association. According to FAIR, the Solomon Amendment was unconstitutional because it forced law schools to choose between exercising their First Amendment right to decide whether to disseminate or accommodate a military recruiter’s message, and ensuring the availability of federal funding for their universities.
Roberts points out:
The Constitution grants Congress the power to “provide for the common Defence,” “[t]o raise and support Armies,” and “[t]o provide and maintain a Navy.” Art. I, §8, cls. 1, 12–13. Congress’ power in this area “is broad and sweeping, O’Brien, 391 U. S., at 377, and there is no dispute in this case that it includes the authority to require campus access for military recruiters. That is, of course, unless Congress exceeds constitutional limitations on its power in enacting such legislation.
And that's the issue in this case. Does the Constitution grant law professors more rights than prospective draftees or draftees? Of course it does not. No matter how the law professors twist, turn and obfuscate the issue, that was the basis of their contention. Otherwise, an 18 year-old forced to register with Selective Service would have the right to say that Congress was forcing him into expressive conduct endorsing the same policy and announce "Thank you, I prefer not, and don't you dare condition federal aid on my compliance with this law." Surely law professors ought to have some slight familiarity with all the cases supporting Congress' ability to override individual rights in this manner.

I think everyone should look at this case and realize that a large group of law professors seem to be out of touch with both reality and the Constitution. Also, in some cases their ability to reason legally seems to be overridden by their devotion to their pet causes. What's amazing about this is not the 8-0 decision rebutting FAIR's claims, but the (split) Third Circuit's decision supporting their claim. Roberts again:
As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.
This is not a subtle distinction. It governs so much of First Amendment precedent that it is absolutely unbelievable that anyone would argue otherwise. Roberts:
Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading “White Applicants Only” hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.
Roberts pounds the final nail into this constitutional law primer:
If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into “speech” simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O’Brien to determine whether the Tax Code violates the First Amendment.
Concluding the thrashing, Roberts writes:
In this case, FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect. The law schools object to having to treat military recruiters like other recruiters, but that regulation of conduct does not violate the First Amendment. To the extent that the Solomon Amendment incidentally affects expression, the law schools’ effort to cast themselves as just like the schoolchildren in Barnette, the parade organizers in Hurley, and the Boy Scouts in Dale plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it,while exaggerating the reach of our First Amendment precedents.
There is no other way this case could have been decided without destroying Congress' ability to raise and regulate armies. The result was absolutely dictated by the Constitution itself and this is why the liberals and the conservatives of the Supreme Court signed onto an opinion remarkably disrespectful of the contentions by FAIR.

As for the Don't Ask, Don't Tell policy and objections to it, I quote one of Ann's commenters:
I can promise you, that the VAST majority of gay men who ever served willingly and openly find this a farce!

The opposition to the Solomon ammendment wasn't a free speech position, it was an anti-military position. They didn't want to open a forum for dialogue, under the first ammendment, they wanted to squelch the opinion of the military, and deny the military, and it's representatives, their ability to speak, that includes those gay men who could have moved the ball forward.

The Gay Straight Divide in the military will not be won thanks to effete, never served arrogant F's floating around in academia, but rather by hard working sacrificing gays who stand up once they've earned distinction within the uniformed services.

I PRAY! Noone gives harvard kudo's for trying to protect their money, while homosexual men and women are sacrificing their lives for the IDIOTS to abuse the very thing they SAY they are trying to protect.

That seems fair to me. What does not seem fair is the remarkable reaction by many of the law profs to the opinion. It says a great deal about the character of some of these people. Ann's reaction is more pained than arrogant, mean or petty, unlike that of many of her colleagues. She exposes the deficits in her thinking on this one pretty clearly and quite fairly. But in the article we read this quote:
"I've heard numerous hypotheses," Mr. Rosencranz said. "Of them, the only one that seems utterly implausible is that three dozen law schools, 900 law professors, the court of appeals, and a dozen top law firms are all inept at connecting the dots of Supreme Court precedents."
No - that's the only plausible hypothesis. This case and the reaction to it is proof positive that the criticism leveled by so many lawyers and so many non-lawyers agains this brand of la-la leftist constitutional thinking is so absolutely justified. The la-la leftists are incapable of reasoning objectively. They are incapable of reasoning coherently. They are incapable of reasoning logically - and this is what they teach their students.

Again - I stress to you that the entire suit amounted to the claim that the First Amendment granted rights to law professors that 18 year-olds don't have. Give the keeping of the Constitution into the hands of people like this, and you will find that the First Amendment means nothing for you and everything for the elite. Our entire system of law cannot stand on this basis. The only people who understood this suit knew it struck against the draft and the Military Code of Justice, and it appears that a huge number of law professors were either too stupid to understand that or are now lying through their teeth about their intent.

Update: See Georgetown's Solomon site. For an example of how far these people have slipped the surly bonds of reason and fact, try this letter of protest to the Boston College Law School because of their decision to allow military recruiters access, which says in part:
We are profoundly hurt that our own teachers - legal scholars and skilled attorneys - have not stood up for the protection of our rights. Our faculty has been and should remain to be at the front of the battle against a federal law that is discriminatory on its face. Instead, the faculty resolution purports to “reaffirm” the law school’s commitment to its nondiscrimination policy on the basis of sexual orientation while in the same breath failing to actually do so. If the military discriminated on the basis of race, religion, ethnicity or physical ability, BCLS would have defended the nondiscrimination policy and sought alternatives to outright capitulation, no matter the cost.
Hey, how about age? Since when does the military not discriminate on the basis of physical ability? Should law students be drooling in public like this? Should they be taught to be proud of the pools of drool surrounding their feet? The military discriminates on the basis of gender for some postings. The argument is whether it is a fact-based discrimination or an unnecessary remnant of past stereotyping.

I don't myself have a position on Don't Ask, Don't Tell. I don't think I know enough to have one, even though I dislike the idea of someone being forced to live a closeted life. I do know that the military discriminates on the basis of physical ability, which puts me a step higher on the "in contact with reality" scale than these Lambda kids. As for discrimination, yes, GLBT are discriminated against in the sense that they must remain discreet about their sexual orientation. Otherwise, they face less discrimination than women, midgets, or amputees, or asthmatics or people with rheumatoid arthritis. I suspect that most of the military's rules about women are pretty solidly founded, and the same is true for those with physical disabilities.

More hilariously, the AALS sees nothing odd about claiming that its non-discriminatory policy is somehow uniquely offended by Don't Ask, Don't Tell. This is its non-discriminatory policy as cited in the amicus brief to the Third Circuit:
A member school shall pursue a policy of providing its students and graduates with equal opportunity to obtain employment, without discrimination or segregation on the ground of race, color, religion, national origin, sex, age, handicap or disability, or sexual orientation.
The military would never qualify, and I think somehow another clause would be brandished to justify the ban even if Don't Ask, Don't Tell was dropped tomorrow.

Beautifully argued post, M-O-M. I agree with you that this was more about the law profs' egos and anti-military bias than it was about free speech. You always speak eloquently about the path that most Western societies are on right now, which is really a renewed form of the old "corporatism," in which groups -- however arbitrarily invented -- constantly fight with each other for privileges, protections, and benefits from the collective pie provided by the state. In a society where certain things cannot be said because it might offend one group, and other things cannot be done because it infringes upon the corporate privileges bestowed upon another by patronage politics, freedom is very hard to maintain.

Thank goodness for John Roberts, who has the sense to notice that law professors are not a social group in need of special protections and privileges.

1) DODT is actually a statute, as I understand it - not a military regulation, although enforced via military regulations. Congress certainly has the power to change the policy, and the military does not. However, I have yet to hear of a law school that bans recruitment for congressional staff offices, boycotts the visits of congresscritters, or urges graduates not to run for Congress.

2) Given the vehemence of anti-military sentiment at many law schools, along with the attention any military recruiters will get as a result of the controversy, I wonder whether it will be academically safe for students to visit with the recruiters. Will they be penalized academically? Ostracized, perhaps? Denied letters of recommendation from professors outraged at their considering military service?

(Under normal circumstances I'd say not likely, but many of the law professors seem quite angry about this.)
Jaed - many of the law professors do seem terribly angry about this. Perhaps the very poor foundation for rationally-based irritation exaggerates their reaction. Someone like Althouse would never retaliate against a student. But reading some of the comments from the legal eagles of academia does make me suspect that it could happen.

Your argument about not sanctioning Congress is completely appropriate. The entire line of conduct by the law professors in this matter as well as the line of legal reasoning set forth in the suit is so skewed that it's hard to fathom.

Pedro - It does seem as if an unconscious elitism is at work here. It ought to have been obvious with 20 minutes thought that if the associational and free-speech rights of law faculty members were being violated, than the rights of the young men forced to register at eighteen are far more violated. Wouldn't litigating that issue be the appropriate thing to do? And who better to do it?

You see, I would respect this lawsuit if it were filed arguing against the draft or Congress' ability to compel registration or service in general. It would have no chance of success, but it would be a stance with integrity and some coherent, honest reasoning behind it.

This was not respectable and not about everyone's First Amendment rights. It is most definitely not even about the rights of gays in the military. It's a self-serving exercise in narcisssism and navel-gazing that deserved the harsh rebuke it received.

The reaction to that rebuke is extremely illuminating. The difference between the average citizen and one of these law professors seems to be that the average citizen believes that rights are possessions of everyone, and that these law professors believe that rights are extended to individuals who are morally and intellectually superior to the average citizen in order to allow their voices and influence to improve society. Could there be a bigger divide between the two conceptions of the fundamental underpinnings of our society?

Your remarks about group privilege seem irrefutable to me. These are wanna-be aristocrats, not democrats. So are the vaginahabis. One way or another, this faultline in our society will have to be resolved or we will devolve like ancient Rome into a tyranny.
Great post. I love this blog.

In fact, if it were belief, opinion and agendas were to carry the day, at least in terms of free speech, abortion rights in this country would look nothing like they do now.
SC&A - GREAT point. And they would look nothing like the SD law either. I doubt very much that the citizens of SD would vote for a law that said that an eleven year-old who was raped and impregnated by her father couldn't get an abortion in SD.

I think the undercurrent of uneasiness running through the functional segments of the public on both the left and the right is due to a well-founded suspicion that our legislators have become decoupled from the electorate.

How we can counter this is the most immediate question. Obviously we need more debate on the difficult issues rather than less. We need to dump the sacred cows out the door. We need to stop the various agendistas from controlling the dialogue. Most of all, the idea that we should bypass our legislators needs to go out the door.

As Ann wrote, you go to the Supreme Court on issues like this because you believe they are not issues that should be decided via a democratic process.

Isn't that the mindset that is hurting us so badly? As we make more and more issues "untouchable" in our universities and legislatures, our ability to forge a consensus is collapsing, and collapsing just when we need it the most.

Pedro has a very astute post up about humor and what it says about our political culture.
This stuff is all Ivy, Stanford, and whatever other institutions produce people who just know they are better than everyone else and actually believe that some rights are superior to other rights, especially the rights of the oh so smart. Nothing is equal to them. The law is something to be challenged, just because. And the conceit of these pampered babies who think it is glorious to lose as long as you lose fighting for something you believe in: These offspring of the idle rich will never risk anything, not their lives, not their children's lives, not their parents lives. To deceive yourself that losing is somehow noble when nothing at all is risked says it all about these overpriveliged narcissistic brats.
Howard, I think you spoke for A LOT of people there. They've got the right to make their case, but they are fooling themselves if they think the average person is going to respect it, or them for making it.

Our constitution grants us the right to be foolish as well as wise.
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