Tuesday, March 07, 2006


Teaching law professors the law

The Washington Post wastes no time in getting it wrong in their reporting on a Supreme Court ruling:

“The Supreme Court yesterday 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.” A Victory For Military Recruiters.

Let us be clear – it is not a Pentagon ban. It is the law of the land – passed by Congress and signed by the President. Most recently that would be the “National Defense Authorization Act for Fiscal Year 1994, 1993”; passed in November 1993. I’ll leave it to you to do the math as to who was then the President and what Party controlled both parts of Congress. Of course, the military considers it good policy but were the law to change it would adjust its thinking accordingly.

“The decision, while closely watched, was unsurprising after the oral arguments in the case, during which the justices expressed great skepticism about equating the recruiting with protected expression.”

The decision was unsurprising from even before the oral arguments because it has long been recognized that the federal government can attach strings to its outlays from the purse. You don’t need a law degree to understand such a fairly commonsensical proposition. In fact, just the opposite – a law degree may get in the way.

“The Forum for Academic and Institutional Rights (FAIR) -- a coalition of law schools and professors that formed to sue the government -- had said the law "compelled speech" that made it appear schools were endorsing the government's exclusion of acknowledged gays in the military, thus violating the schools' right to free speech under the First Amendment.”

Remarkably, the Third Circuit didn’t disagree and issued an injunction against enforcement of the Solomon Amendment thus leading to yesterday’s Court ruling.

Despite the fairly complete smackdown that yesterday’s ruling would seem to represent, the FAIR spinmeisters were out in force.

“Supporters of FAIR took solace in passages of the opinion that noted students and others would still be free to protest military recruiters.” And

“Joshua Rosencranz, a New York lawyer who represented FAIR in the case, said the schools always saw the suit as a "scrimmage in a broader war" about equality.
"We brought the suit in part because there are those saying 'How dare you let protesters on campus when the recruiters were there?' “he said. "Well, this opinion makes clear that those rights are still in tact. It forced the government to state what the line was."

This is such a strawman - nobody supporting the Solomon Amendment was suggesting a limit on campus protests or on professors openly stating their objections. This case was just an exercise in grandstanding by law professionals who should know better. Actually, we all know better now because the Court didn’t just say that Congress could tie funding to recruitment opportunities, it said that Congress could mandate the recruiting access under its Article I authority to “raise and support Armies”…..on second thought, maybe I should be thanking FAIR for getting this matter cleared up.

Overall, though, this was such a pathetic effort by FAIR that I think it reasonable to question just why our military would want lawyers trained by the likes of the coalition’s participants.

SCOTUSblog provides more commentary and links to other applicable sites.

Final Note: Although at times, military service has been a requirement, it has never been a right. And people are excluded from military service for a variety of reasons: too old, too young, too fat, too tall, too short, too dumb etc. The debate on who can serve is a legitimate one but it needs to be a debate – not just mindless pontifications like the Post displays in their knee-jerk March 6 editorial: Now Repeal the Ban. The Post disagrees because…it does – no explanation of why the ban is a bad idea; no point-by-point dismantling of the reasons often given to support the ban – nope, just a general exclamation that the Post thinks it’s a bad idea. Based on my experiences with the military and the Post, well, the Post is going to have to do better than that.

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