We have no doubt that some of America’s brightest legal minds work in the ivory towers of our nation’s law schools. But you wouldn’t know it from the case a self-described “association of 36 law school and law faculties” -- many of which were unwilling to be publicly identified -- pushed all the way to the highest court in the land.
On Monday, the Supreme Court of the United States unanimously ruled that law schools cannot ban the military from recruiting potential new attorneys on-campus if the law schools allow any other employer to do so. Actually, that’s not quite right, like everything in legal academia -- and almost everything in constitutional law -- it’s more complex than that. More precisely, the justices, conservatives and liberals alike, decided that America’s colleges and universities cannot expect to keep receiving a variety of federal funds if their law schools refuse to give our nation’s military the same access for recruiting any other employer gets.
That sounds simple enough and fair enough, but, for years, the legal academy hasn’t thought so. Instead, according to the Forum for Academic and Institutional Rights (FAIR), the coalition of law schools and law professors that brought the lawsuit, making federal funding dependent upon permitting military recruiting causes a tremendous First Amendment problem because it coerces support for discrimination in the form of the military’s “Don’t Ask, Don’t Tell” policy. As their constitutional theory goes, on-campus recruiting is part of a law school’s expressive conduct and association, so allowing military recruiting sends the message that the law school endorses the military’s anti-homosexual policy.
Of course, the very fact that FAIR publicly fought military recruiting on-campus demonstrates that the law schools and law professors expressed anything but support for the military’s “Don’t Ask, Don’t Tell” policy. Indeed, they vehemently opposed it. And, following Monday’s decision, FAIR promised to make the legal academy’s hostility even clearer, stating on its website that the “Supreme Court’s opinion … is a call to arms to law school administrations across the country to vocally demonstrate their opposition to the military’s ‘Don’t Ask, Don’t Tell’ policy.” Thus, not only would any interested observer understand that the law schools and law professors disagreed with the military’s policy, but any sentient human being would. As Chief Justice John Roberts explained: “We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so... Surely students have not lost that ability by the time they get to law school.”
Perhaps the most interesting and hypocritical part of this story is a fact that didn’t appear anywhere in the Supreme Court’s 21-page decision, but rather in the third paragraph of the story about the decision published by The New York Times. In that article, Linda Greenhouse noted that the Association of American Law Schools (AALS) “since 1991 has required adherence to a nondiscrimination policy on sexual orientation as a condition of membership.” And despite -- or should we say in spite of -- the decision, the executive director of the AALS “said in an interview Monday that the group would continue to require its member schools to engage in ‘significant’ activities” demonstrating opposition to the “military’s policy.”
In other words, the legal academy doesn’t seem to mind the compelled speech and forced association imposed by the AALS through its policy of opposition to military recruiting. But, at the same time, those same legal scholars consider it constitutional injury when the federal government requires on-campus access for military recruiting if the college or university receives federal money. Remember, according to The New York Times, the AALS “represents nearly all accredited law schools,” and, according to the Supreme Court, “nothing” in the federal requirement “restricts what the law school may say about the military’s policies.” Call FAIR’s lawsuit academic nonsense, and the Supreme Court’s decision judicial sensibility.
Of course, the law schools could refuse the millions upon millions of dollars of federal support, but that would require a commitment to principle beyond self-interest, and that’s just not going to happen. March 9, 2006