Friday, March 17, 2006

Supreme Court Rebukes Law Schools

Just over a week ago, in a decision suprising for its unanimity:

The Supreme Court... unanimously upheld a federal law that forces colleges and universities to permit military recruiting on campus, despite the schools' objections to the Pentagon ban on openly gay people serving in the armed forces.

By a vote of 8 to 0, the court upheld the Solomon Amendment, which permits the denial of federal funding to schools that do not allow military recruiters the same access given to all other job recruiters.

The lawsuit was started by FAIR, a coalition of law schools and professors that claimed they had the right to take federal money without following federal requirements (and simultaneously doing a disservice to their students).

Not only did the greedy, pretentious academics lose in their attempt to bite the hand that feeds their overpriced institutions, they lost more than most expected (and more than the headline news could explain):
So thorough was the court's rejection of FAIR's arguments that it ruled Congress could have achieved equal access not only indirectly, by threatening a funding cutoff, but also directly, through legislation based on its constitutional power to raise military forces. In fact, the court suggested in passing, even colleges and universities that do not receive any federal funding could be compelled by Congress to allow military recruiters.
So while federal funding an acceptable condition for requiring schools to not discriminate against military recruiters, it isn't even necessary.

The schools lost because recruiter access is conduct, not speech. The New York Times' Adam Liptak adds:

And if the result was not embarrassing enough, there was also the tone of the court's unanimous decision, written by Chief Justice John G. Roberts Jr. In patient cadences, the kind you use in addressing a slightly dull child, the chief justice explained that law students would not assume that their schools supported the military's "don't ask, don't tell" policy if they saw military recruiters on campus.

"High school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so," he wrote. "Surely students have not lost that ability by the time they get to law school."


Peter H. Schuck, a Yale law professor who thought the law schools' legal position was misguided, said that many professors were so indignant about the military's treatment of gay men and women and so scornful of the military itself that their judgment became clouded.


The elite law schools have for decades been overwhelmingly liberal, Professor Schuck said, and that may have blinded professors to problems with their arguments. Only one law school brief, organized by members of the faculty of George Mason University School of Law, supported the military.

It certainly says something about American law schools when the Supreme Court unanimously spurns the arguments presented by every school except for one. The signers of the George Mason faculty brief should be applauded.

For more information, check out:
Rumsfeld v. FAIR, No. 04-1152, Mar. 6, 2006
"U.S. Military: 8 Elite Law Schools: 0 How did so many professors misunderstand the law?" (Weekly Standard)