Congratulations, America
She’s finally gone. One of the sorrier chapters in the history of federal employment ended with an unexpected whimper December 7, when Mary Frances Berry “resigned” from the U.S. Commission on Civil Rights after 24 wholly counterproductive years. She was two days late with the move, and it was technically unnecessary, since her most recent six-year appointment by President Clinton had actually expired December 5. But there’s always been something about Mary, so she’d been threatening, without explanation, to continue occupying her office another couple of weeks–and to sue anyone who tried to stop her. Instead, for what’s probably the first time in her high-pitched life, Berry decided to go quietly.
Ms. Berry is survived at the Commission, which she had ruled like a cult leader since becoming chairman in 1993, by a depressingly large number of career-staff acolytes. But the White House is already at work on the problem thus posed. Berry “will be asked for her keys to the building,” one Commission insider tells the Washington Times, “although we will still have to change the locks, because there are many people here who are loyal to her who would allow her in.” (One such, longtime Berry henchman and Commission staff director, Les Jin, has since been “released” from the agency, according to the Washington Post.)
Also among the mourners are . . . well, let’s see . . . the Chinese Communist party, maybe? They’re probably still grateful for that speech Berry gave back in 1980 praising Beijing’s educational system for its successful inculcation of “what they call socialist consciousness and culture.”
Most definitely not among the mourners, we’d bet, are Ms. Berry’s moderate and conservative ex-fellow commissioners, whom she famously treated like dirt. Notable among the long-suffering stalwarts: social scientist Abigail Thernstrom, who’s now become the Commission’s vice chairman (replacing Berry ally Cruz Reynoso, who also “resigned” December 7), and law professor and Weekly Standard contributor Jennifer Braceras. The new chairman of the Commission, incidentally, named to replace Ms. Berry herself by President Bush, is former Education Department official and energy-industry attorney Gerald A. Reynolds. Hoorah!
Oh, yeah, one other thing, this too from the Washington Post: “Berry did not return several telephone calls placed to her through the public relations firm McKinney & Associates Inc., which contacted her on behalf of reporters while she was at the Commission.” It seems Ms. Berry had for several years retained a private, outside media gatekeeper–at federal expense, something like $150,000 per annum–and refused to discuss her public business through any other channel.
Not to worry. “One of the first things we’re going to do,” says new chairman Reynolds, “is have an audit.”
Be Prepared
The Scrapbook continues to scratch its head over the November 29 Third U.S. Circuit Court of Appeals ruling in Forum for Academic and Institutional Rights v. Rumsfeld. That’s the one barring enforcement of the federal government’s so-called Solomon Amendment, which requires colleges and universities to cooperate with Defense Department employment recruiters or forfeit their federal funding. The Third Circuit thinks it’s found a serious First Amendment infirmity in the Solomon Amendment, at least as applied to schools that claim to be conscience-bound not to let their students talk to military job interviewers. And that’s what the plaintiffs claim to be. They’re an ad hoc coalition of law schools and professors who disapprove of the Defense Department’s “don’t ask, don’t tell” policy with respect to openly homosexual employees.
The specific First Amendment “right” these plaintiffs are advancing is basically–as we pointed out last week–a right not to be exposed as hypocrites. The law schools are demanding that the federal government stop tempting them to tacitly abandon their anti-discrimination principles. Which is, they say, exactly what’s been happening in recent years: The schools inevitably wimp out, pocket their federal money, and let Pentagon attorneys attend their campus job fairs. We are thus aiding and abetting Pentagon homophobia, the plaintiffs complain. Help us stop!
It’s what seems to us a self-evidently preposterous argument. We nevertheless find ourselves moved to congratulate the people who are now advancing it for their exquisite sense of irony.
The law schools in question are asserting a collective privilege to censor armed-forces recruitment messages under a First Amendment doctrine known as “expressive association.” And as the Third Circuit majority opinion points out, under certain circumstances, “expressive associations” like these law schools might indeed enjoy a constitutional entitlement to exclude unwelcome thoughts and individuals from their midst. If, that is, the Supreme Court’s most recent explication of expressive association theory is correct. The Third Circuit ruling states it plainly: “In Dale, the Supreme Court recognized that ‘[t]he forced inclusion of an unwanted person in a group’ could significantly affect the group’s ability to advocate its public or private viewpoint.” And the First Amendment cannot tolerate such interference in free advocacy.
Did you get the joke? The Dale case referred to is Boy Scouts of America v. Dale, a 2000 decision wherein the high court announced that a state public accommodations law couldn’t constitutionally be used to impel the Boy Scouts to accept an openly gay assistant scoutmaster. Dale was widely decried as a right-wing atrocity at the time.
Not any more, apparently. All of a sudden America’s leading law schools and faculty bigshots seem to think Boy Scouts of America v. Dale was correctly decided.
Not that there’s anything wrong with that.
Happy Anniversary
The Collegiate Network celebrated its 25th birthday at a Capitol Hilton reception here in Washington a couple weeks back. Most recently as an arm of the Intercollegiate Studies Institute, the group has been sponsoring conservative student newspapers around the United States–and funding internships at national publications like this one–since 1979. And it has much to be proud of, as Collegiate Network cofounder Irving Kristol explained in a letter read to the crowd at evening’s close. We excerpt that letter below:
In the university, as in the polity as a whole, this counterculture welcomes different versions of conservatism–different ideas, strategies, policies. Liberals like to portray this diversity as somehow a weakness in conservatism. In fact, it is an asset, especially in the university, for it stimulates intellectual and moral energies that might otherwise become inert and dull. If this stimulation and education takes place among the students, quite apart from the faculty, that too may be to the good; self-education is sometimes more pleasurable and gratifying than formal education.
Congratulations for all you have accomplished in this past quarter of a century, and for all you are bequeathing to future generations of students and alumni.
