LAST TUESDAY THE SUPREME COURT heard oral argument in Rumsfeld v. Forum for Academic and Institutional Rights. Rumsfeld, of course, is the secretary of defense. FAIR, as it’s more commonly known, is a coalition of 36 law school and faculty groups, backed by friend-of-the-court briefs from organizations representing dozens of other law school and faculty groups, as well. At issue is the so-called Solomon Amendment, a congressional enactment under which American universities, in order to retain eligibility for most forms of federal funding, must provide military recruitment officers the same level of assistance and campus access that every other prospective employer routinely enjoys.
FAIR and its allies would very much prefer to withhold such cooperation from the Pentagon–concerned as they are about the underlying “immorality” of anti-homosexual bias in Defense Department hiring practices. But since no serious research university can nowadays survive without its federal aid, neither can any such university permit its law school to imperil that aid by obstructing the Judge Advocate General’s corps when it shows up to conduct on-campus job interviews. So our law professors are made to stand down, and our law schools are made to look hypocritical, more interested in money than principle. Thus does the Solomon Amendment violate the legal academy’s constitutional right–and professional obligation–to keep faith with, and properly propound, the true meaning of “equality, justice, and human dignity.”
That, at least, was the argument FAIR attorney Joshua Rosenkranz spent half an hour attempting to defend before the Supreme Court last week. But something went horribly awry along the way, and by the time he was done, it seemed clear not just that FAIR’s case was hopeless–Rosenkranz will be lucky to win even a single justice’s vote–but that it was positively inane. The question arises: How could America’s law schools have collectively embraced such an embarrassing farce?
Consider, for example, Rosenkranz’s brief exchange with Justice Breyer about the possible limits of FAIR’s asserted First Amendment privilege to resist, or even actively disobey, a statute its members find obnoxious. Breyer wanted to clarify whether this purported right was something uniquely possessed by tenured law professors who don’t like “don’t ask, don’t tell”–or, instead, whether there was some neutral and generally applicable principle that Rosenkranz was identifying.
Rosenkranz: Absolutely, your honor.
Breyer: Also the same right, Bob Jones University, because they disapprove of social mixing of the races?
Rosenkranz: To answer the first hypothetical first, if that’s a matter of conscience, absolutely.
Breyer: And there are a lot of people in the country, they may take this view, anyway, they may not believe in either affirmative action, they may not believe in diversity, they may even believe in racial segregation for all I know. I hope there’re not too many, but there might, and those people all have the same right?
Rosenkranz: They have the same First Amendment right.
Murmuring arose throughout the Supreme Court chamber at this point–the way it often does when inexperienced attorneys allow themselves to be maneuvered, under questioning, into damaging “concessions” they don’t actually intend.
Amazingly enough, though, Rosenkranz’s embrace of the “racial segregation” analogy for his clients’ treatment of Pentagon recruiters was not a mistake. He had already briefed the Court on precisely this point: “[T]here can be circumstances . . . where discrimination is so integral to an organization’s identity, or to the message its members have gathered to communicate, that the right not to associate trumps even the government’s weighty interest in opposing discrimination.” Here, FAIR’s counsel of record specifically suggested that Justice Breyer and his colleagues consult Invisible Empire of the Knights of the Ku Klux Klan v. Mayor of Thurmont–a 17-year-old Maryland district court case meant, one presumes, to stand for the proposition that law school professors can’t be compelled to welcome uniformed servicemen into their ambit–just as the “Ku Klux Klan cannot be forced to admit Jews or African-Americans to its ranks or to its parades.”
Think about that for a moment: Thirty-six leading law schools, on the assumption that doing so would help them, have just advised the United States Supreme Court that contemporary American legal education bears meaningful comparison to a Klan assembly.
Well, let us count the ways–a couple of them anyhow.
Paranoia and Self-absorption: Included in the Rumsfeld case file is a declaration by Boston College Law School student Gerald V. May III in which he remembers that dark, awful day back in the fall of 2002 when the Solomon Amendment finally broke his professors’ will. “I had to directly confront the presence of discrimination on campus. Watching JAG recruiters casually walk down the hallways and sip free coffee provided by the Career Services Center gave me a sickening feeling.” And May is hardly alone, according to FAIR. “Discourse has suffered” at law schools all over the country. The “academic environment is . . . poisoned.” Professors “attest to student expressions of cynicism” whenever classroom discussion turns to “topics such as equality, human dignity, and other underpinnings of a just society.” Meanwhile, off campus, a “raging national debate” is purportedly underway about JAG corps recruitment of freshly minted lawyers.
Stupidity: American higher education can claim no constitutional entitlement to federal grants and contracts per se, FAIR acknowledges. But that money has now been linked by statute to university cooperation in the government’s effort to fulfill its constitutionally mandated responsibility to raise and support an army. Various universities mean to refuse such cooperation, and undermine that effort, as a vehicle for the expression of their views about the civil rights of gay people. Views about the civil rights of gay people are protected by the First Amendment. Therefore–the law schools’ mindbogglingly illogical argument proceeds–the government is constitutionally required to let universities actively obstruct the Pentagon’s on-campus volunteer-force recruitment campaign, free from the “crisis of conscience” that a threatened financial penalty might inspire. This, even though no one disputes the fact that the government could, if it wanted to, forcibly conscript every law student in the land without ever having spent a single dime on higher education.
One wonders what kind of lawyers they are, exactly, who graduate from institutions that teach such nonsense.
Maybe the Pentagon shouldn’t actually want to commission these people all that much to begin with?
– David Tell, for the Editors
