March 8, 2006

"The institutional vanity and intellectual slovenliness of America's campus-based intelligentsia...."

So begins George Will's column on the Solomon Act case (Rumsfeld v. FAIR):
On Monday Roberts's shredding of the law schools' arguments included a tartness that betrayed impatience with law professors who cannot understand pertinent distinctions.
See what you get when you write a crisp, clear opinion? Columnists portray you as impatient and tart. Damn it, Will! Roberts is writing well. Are you so used to flabby, obfuscatory court opinions that you think they're a way to show that a justice takes the arguments and his job as a judge seriously?

Well, Will would like to think that we professors are just lost in a world of our own, but the truth is that we've put a lot of effort into enforcing standards of nondiscrimination in our law schools, and we don't like to have to sacrifice that for the sake of the military's Don't-Ask-Don't-Tell policy.
Recruiters are obviously not components of law schools; they are outsiders on brief visits for a limited purpose. "Nothing about recruiting," Roberts wrote, "suggests that law schools agree with any speech by recruiters." Besides, "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, pursuant to an equal access policy." Then, Roberts's tartness: "Surely students have not lost that ability by the time they get to law school."

The law schools and faculties earned that sip of the chief justice's vinegar by bringing this case to court. The professors deserved -- no, let us just say they needed -- better legal advice than they were able to give themselves.
Will is being obtuse. People make the best arguments they can, once they've decided to litigate. The decision to litigate is not based solely on the strength of the arguments. It's wrong to bring a completely unfounded claim, but there is a worthy tradition of making difficult new arguments, even when the chances of losing are high, when one believes important principles are at stake, as the law professors did here.

75 comments:

AJD said...

It is difficult to know what to make of an assessment about "writing well" from someone who can rarely write a brief passage without resorting to exclamation points -- an age-old substitute for actually writing well.

Uncle Jimbo said...

Ann,

You state that academia, or your bit of it, has made tremendous efforts toward non-discrimination, which led to resistance to military recruiters and Solomon.

How do you square that with affirmative action admissions policies, recently upheld by the Supremes in Grutter? That sure looks like discrimination to me.

Cordially,

Uncle J

ShadyCharacter said...

Jimbo, you're forgetting, bad people deserve to be discriminated against to benefit good people.

How are we to distinguish between good deserving people and bad people? Luckily, there are some fail-safe proxies for "goodness" - skin tone and genitals. Can't have too many male whites, asians or Jews now, can we? That was Dr. King's dream, was it not?

Balfegor said...

there is a worthy tradition of making difficult new arguments, even when the chances of losing are high, when one believes important principles are at stake, as the law professors did here.

And we're probably going to see another round of this once South Dakota finishes arguing its case up to the Supreme Court.

Re: Jimbo

How do you square that with affirmative action admissions policies, recently upheld by the Supremes in Grutter? That sure looks like discrimination to me.

And it looks like racist discrimination to me too, but the law schools (in good faith, I should hope) operate on a different model of what is and is not meaningful discrimination. It seems about as meritorious as separate-but-equal by my lights, but I have confidence that in ten or twenty years, with a younger generation at the helm, the schools will come around to that view too. Just have patience.

Simon said...

*Law professors bring frivolous and hypocritical lawsuit
*Supreme Court unanimously tells them where to go
*Columnist points out that you'd think law professors would have had a better grip on what the law permits
*Law professors get angry at columnist.

It's as easy as 1-2-3!

I don't think that Will is disputing or disparaging Roberts' writing, he is making the point that FAIR - an organization composed of law professors, for God's sake! - should have known better than to bring this hypocritical and silly suit in the first place. Nor do I think that Will is being obtuse, because I think you miss his point; I don't think he's just criticizing FAIR's argument, I think he's criticizing both that and the fact that they brought suit in the first place. "The decision to litigate is not based solely on the strength of the arguments," true, but the decision to litigate must surely be informed by the absence of an argument which could appeal to a single justice.

Ann - FAIR couldn't even pursuade Ruth Ginsburg, and she's MARRIED to a MEMBER of FAIR! Does that not underscore how clearly frivolous this suit was?

Surely it is a testament to the American system of government that when a group of professors decided to impede the power of the government to raise and support armies, they found themselves more litigating than litigated against. I think in most other countries, they would have been lucky to find themselves in court as defendants, let alone plaintiffs. Somehow, I think this point will be lost on FAIR and its apologists.

Ann Althouse said...

Someone: You're a jackass!

Jimbo: Fair enough. The lawprofs have their own subtle ideas about discrimination, and these ideas have not won complete respect (though we did win in the Supreme Court on that). We make a distinction between discriminating out of hostility toward a group that has experienced discrimination historically and discriminating to benefit members of such groups. I understand why you object to that, but you should admit the distinction is clear even if you think it shouldn't be used.

Goesh said...

When the whole bench gives 'em a big fat resounding NO, one would have expected better from a bunch of law school professors.

Akiva said...

Ann - what about groups that have experienced hostility and practical harm, yet have self-managed to overcome it? Example, my mother could not get in to certain universities, because the "Jew" quota was full, and her parents were locked out of certain professions because of refusal to work on Saturday's (for religious reasons). Should we have preferential future admission based on that?

The point I'm nitpicking is, as a group few would say that Jews haven't overcome the affects of that discrimination, whether by working extra hard, starting their own institutions, etc.

So is the preferential treatment based on the historical discrimination or a current perceived underprivaledged state?

yetanotherjohn said...

It is harder to be out of the "mainstream" than to lose a unanimous decision in the Supreme Court.

"It's wrong to bring a completely unfounded claim, but there is a worthy tradition of making difficult new arguments, even when the chances of losing are high, when one believes important principles are at stake, as the law professors did here."

If the law schools really believe in this important argument, what will they do next? Since they were told they can not have their cake (the funding) and eat it too (defy the law that hinged the funding on recruitor access), will they show how important this principle that they have at stake by rejecting future funding. I suspect not. I suspect that when there is a cost, admitedly a high one, to standing up for the "important principles" that are at stake, they will decide that other things are more important.

Icepick said...

someone_u_know: It is difficult to know what to make of an assessment about "writing well" from someone who can rarely write a brief passage without resorting to exclamation points -- an age-old substitute for actually writing well.

Ann Althouse: Someone: You're a jackass!

LOL! Game, set and match to Prof. Althouse! With extra exclamation points!!!!

JohnF said...

"... when the chances of losing are high, when one believes important principles are at stake, as the law professors did here."

The trouble with the professors is that while they had a principle that was important to them, namely, non-discrimination against gays, they failed to realize that it was not, in fact, at stake. As the Court said very clearly, nothing about what was going on with the Solomon Amendment impacted either the principle "at stake" for these professors, or their ability to talk about it.

The reason for Will's scorn, and, if you care to read it into the opinion, the Court's scorn, of the professors was not that they were advancing a "novel" argument in defense of an important principle, but rather that their argument and the principle were not connected by any rationale. That was a sin that one doesn't expect from law professors.

Smilin' Jack said...

Ann Althouse said...
We make a distinction between discriminating out of hostility toward a group that has experienced discrimination historically and discriminating to benefit members of such groups.


Maybe you do, but I don't see where the Fourteenth Amendment does (is it hiding in a penumbral emanation somewhere?), which it seems to me should govern admissions and hiring at a state university.

Ann Althouse said...

Smilin': Maybe it's hiding in the historical context of the amendment. Don't you approve of originalism?

John: I think the lawprofs did the best they/we could with the precedents they had to work with. The inability to make better arguments was not due to lack of legal skill. The key decision was to bring the case at all, and I've stated why that was done.

Richard Dolan said...

"Will is being obtuse. People make the best arguments they can, once they've decided to litigate. The decision to litigate is not based solely on the strength of the arguments. It's wrong to bring a completely unfounded claim, but there is a worthy tradition of making difficult new arguments, even when the chances of losing are high, when one believes important principles are at stake, as the law professors did here."

I think you're being a little to quick to defend the indefensible here. Will is not being "obtuse," nor is he missing the larger picture. This was never really a case of "making difficult new arguments ... when one believes important principles are at stake ..." The law school's arguments were certainly "difficult," if by that you mean unacceptable on any rational basis. Specifically, the "unconstitutional condition" argument, if accepted, would have been an engine of destruction cutting down real "principles" that are clearly "important," to say nothing of federal programs of all sorts. The fall-back statutory construction argument, to the effect that Congress's act in passing the Amendment was a big waste of time accomplishing nothing, was a non-starter; a law student offering that sort of statutory construction argument on an exam would not be likely to fare well, unless sophisitic cleverness were what you were looking for. The only way to avoid those problems with the consequences of the school's arguments would have been to "limit" the application of the constitutional "principle" to situations where "bad" unconstitutional conditions were at issue rather than "good" ones. Given that these arguments were fashioned by law professors, "bad" and "good" here are just code for politically correct results that the professors might favor.

Not surprisingly, Roberts (and many others) pointed out those glaring deficiencies in language that can fairly be called both "clear"(your description) or "tart" (Will's).

You are certainly right that the decision to litigate had nothing to do with the strength of the schools' arguments. But it is equally true that the judgment shown by the professors and the schools in bringing this case was just terrible -- legally, it was obviously a sure loser in the Supreme Court; and politically, it just showed once again that the faculties at universities in general, and the elite law schools in particular, are willing to use those institutions to achieve the policy goals of the most lefty element of the Democratic party. It also is a pretty good indication of what passes for the teaching of "public policy" in those institutions.

Remind me again why state legislatures or alumni having a different view of public policy should be interested in continuing to support institutions that have been captured and are being misused for political purposes in that way.

MadisonMan said...

On Monday Roberts's shredding of the law schools' arguments included a tartness that betrayed impatience with law professors who cannot understand pertinent distinctions.

I don't read that sentence as a slam on the Chief Justice's writings, but as a compliment. But I love the tartness of a good lemon pie. And shouldn't he be impatient if law professors seemingly cannot understand pertinent distinctions?

Icepick said...

Personally I don't believe that affirmative action policies in college admissions (or elsewhere) are good, but they are far less prohibitive than outright bans. After all, one of these things is an outright ban! That is the biggest distinction between college affirmative action policies and the military's ban on open homosexuals.

The criticism of the law professors should focus on their political savvy. This lawsuit has made them appear to be petulant, with no regard for their own subject. Instead of making the military's ban on gays look bad, they've made themselves look foolish. If you tape a target to your face and go hunting with Dick Cheney, you shouldn't be surprised if you eat a load of bird-shot. And so the law professors shouldn't be surprised that they will now be rhetorically shot full of lead by most of the conservative pundits in the country, who idolize the Veep.

Further, every comment today should contain at least one exclamation point.

bearbee said...

Congress approved the Don't-Ask-Don't-Tell policy in 1993.

Is the objection against Don't-Ask-Don't-Tell or the Military itself?

Dave said...

"there is a worthy tradition of making difficult new arguments"

Perhaps to lawyers there is a worthy tradition of engaging in such argumentation, but to outside observers, much of legal argument looks like prevarication and evasion.

If it is really true, as you allege, that making "difficult new arguments" is inherently valuable to the practice of law then perhaps lawyers ought to do a better public relations job.

Simon said...

bearbee said...
"Congress approved the Don't-Ask-Don't-Tell policy in 1993. Is the objection against Don't-Ask-Don't-Tell or the Military itself?"

That is PRECISELY why I say it was hyprocritical. The schools claim that their objection is to the "military policy" Don't Ask Don't Tell, rather than being general hostility to the military. But DADT is not a military policy - it is a duly enacted statute, passed by Congress. If FAIR's problem were genuinely with DADT, rather than just with the military, their beef would be with Congress, not the military!

Yet these hypocrites are perfectly happy to assocaite themselves with Congress, by taking their money and permitting on campus members of the very body which created the policy they CLAIM to be opposing. Do not believe it.

To paraphrase Our Hero, I will become a believer in the veracity - if never the propriety - of FAIR's complaints when they direct their ban against the appropriate targets, that is, when they start refusing access to their premises not only to military recruiters, but also to members of Congress, and when they start refusing to take Federal money until Congress repeals DADT.

Simon said...
This comment has been removed by a blog administrator.
jeff said...

Yep - Ann, you need to correct that. It isn't a military policy you object to - it's a federal law.

Most people who make that "mistake" seem to be rabidly anti-military (their real problem with recruiting), but I don't think that's the case with you.

res_ipsa_loquitur said...

Of course, the military could always openly oppose Congress and not follow DADT...but then you'd have a military which believes it knows better than its civilian leadership, and that never turns out well.

DaveG said...

I agree with bearbee. If it wasn't DADT, they would find some other objection to the military. Gays are being used as political pawns by these liberal pacifists.

The solution for the law schools is simple: don't take the money. How many have taken or will take that path? My bet: 0.000

Also, I personally don't think DADT is all that onerous of a policy. As a hetero in the military, I also had military policy to live by in the form of the ban on PDA, or Public Display of Affection. Of course with those awful haircuts and repulsive glasses, I wasn't often in a position to run afoul of that rule!

Smilin' Jack said...

Ann Althouse said...
Smilin': Maybe it's hiding in the historical context of the amendment. Don't you approve of originalism?


You must be joking. If the contemporary citizenry had had any inkling that the Fourteenth Amendment would lead to "affirmative action" for blacks, much less gays, not only would the Amendment never have been ratified, the entire federal government would have been impeached en masse and Robert E. Lee elected president by a landslide.

Doug Sundseth said...

"...we've put a lot of effort into enforcing standards of nondiscrimination in our law schools, and we don't like to have to ...."

... stop discriminating against the military.

Discrimination is fine if you discriminate against the right sort of people. And we all know that law schools are brilliant at determining which are the right sort of people.

(FWIW, I think DADT is a stupid policy, and Clinton's decision to cave on that issue was the precise point that I lost all respect for him. A comparison with Truman's and Eisenhower's decisions to stick by their unpopular positions is especially unflattering to Clinton.)

!

8-)

AJD said...

Name calling!

Oh Ann, you've descended to a new low!!

Jaskass indeed.

John(classic) said...

Ann said:
"We make a distinction between discriminating out of hostility toward a group that has experienced discrimination historically and discriminating to benefit members of such groups."



That statement bothers me. A lot.

Part of my trouble with it is the implicit arrogance. Somehow I hear "Well in ordinary terms this would be illegal discrimination, but for us it isn't because our hearts are pure and our intent is good". Most lawyers see an inconsistency between the rule of law and an argument of "I didn't rob the bank for reasons that seemed bad to me. Indeed I thought them good. Therefore, I should walk.". Law professors apparently regard themselves as having a heightened moral perception that lets them take advantage of their role in our society to bend the rules so long as it is for what they deem a good purpose..

The greater part of the objection, however, is the underlying racism. It assumes that an important, and for this purpose, the most important, determinant of a person is their race.

Claudia discriminated against John. So Peter now disciminates to benefit Judy. The discrimination all balances out you see, because Claudia and Peter are the same race and John and Judy are the same race. Thus everything is all right -- score: Blacks 1, Whites 1-- the scales balance. Tough luck John, Tough luck Judy. You were sacrificed to balance the scales. Console yourself with a Buddhist view. Next time be reborn a different race when we are rebalancing the scales and you'll get in.

It is the Hatfields and the McCoys raised to consitutional principle--punishing the son for the fathers sins, or the second cousin twice removed, is OK in law school. Group membership is what matters after all, not individuals.

Sorry, I realize this is off topic, but it increasingly is an area where higher education, and law schools particularly, have seperated themselves from the mainstream thought of what is just and right. The justifications smack more and more of sophistry, and the sophistry is less and less convincing. Moreover, acknowledging the quality of the emperor's clothing seems a loyalty test for admission to the professorate. As more and more people say "He seems naked", higher education more vehemently extolls the color, the quality, and the fit.


Sorry again. Let me just disassemble this soapbox and steal away, muttering to myself.

paul a'barge said...

Will is in no way being obtuse. The lawsuit brought by the nefarious law schools was, indeed completely without merit.

The first indication of this for you should have been the voting pattern of SCOTUS (hint: 8-0) and the tone of the decision... thus, the smackdown.

Ann Althouse said...

Those of you who are saying the suit was obviously without any merit are missing the fact that FAIR won in the court below. I agree that the unanimity of the Supreme Court means something, but it doesn't necessarily mean that the arguments were wholly frivolous. It can mean that the justices reached consensus and saw the value of uniting in one opinion. The absence of concurring opinions is significant in this regard. We'll see as the Court moves along, but I am hoping that clear, decisive, unanimous opinions will mark the Roberts Court in many cases.

David Boyd said...

Will meant 'tartness' as a compliment to Roberts and as a dig against law professors. He's saying they deserve Roberts' tartness.

Ann Althouse said...

My point about tartness and impatience is that Will is looking at what is good writing, which should always be used, and seeing it as expressing various emotions. Roberts may write concisely, not because he's impatient, but because he wants to be clear and easy to read. I think Will is projecting his own feelings onto Roberts's prose. And I think if those harsh emotions were there, some of the other justices would have written concurring opinions and complained about it.

Ann Althouse said...

Jeff: "Yep - Ann, you need to correct that."

Specify where I said the thing you're attributing to me. I know it's a federal law. And, btw, I agree that the protest against military recruiters is misplaced. I never said I agree with the schools' policy of excluding the recruiters -- and I don't! I would encourage students to go for these jobs. I also don't like the discrimination against gay people and want to see that changed.

37383938393839383938383 said...

Will is often wrong. He quotes opinions badly and misconstrues what they mean. Unfortunately, Roberts wrote so cleanly and simply that it was easier this week than others for Will to mangle the Court's pronouncement.

Will thinks he's right to mangle Supreme Court opinions because he has an Ivy League doctorate in political philosophy and he's taught government at the collegiate level. I must say, though, that ConLaw in college and ConLaw in law school are like apples and oranges. One's view of ConLaw after practicing as an appellate lawyer or clerking or being a judge is quite different. Will has little expertise or experience to rely on in interpreting legal documents; he doesn't even have a law degree. It isn't surprising that his description of what was meant by a phrase here or there is wrong. If you have been to law school, you have met people with doctorates in political philosophy before -- they were your classmates. And they didn't necessarily do better than you in ConLaw. (Probably because they kept referring to Hegel.)

As for law professors, some are professional jackasses. They have mastered numerous critical attitudes, philosophical stances, and interpretive methodologies. They analyze the material and provoke deeper understanding of the material by their students. That doesn't mean their arguments are correct. Go to any seminar, on anything, and you'll see disagreement, and half of what you'll hear is nonsense. It is the professors who are pure academics who make for the most provocative teachers -- they analyze the text from the greatest number of perspectives -- and also for the worst prognosticators of how the law will develop. Laurence Tribe is brilliant: Has he ever won in the Supreme Court? But there are idiotic practitioners who go before the Supreme Court for the one case they will have there, and they win. It is not surprising that law professors would throw together a hodgepodge of valid but unsound arguments that fail to convince a court. Law professors rarely go to court. They cobble together valid but unsound arguments and dare their colleagues to invalidate them for a living. What more do you expect?

paul a'barge said...

Ann,
"Surely students have not lost that ability by the time they get to law school."

Come on now, stop being obtuse.

You're really not trying to describe that as anything but tart, are you? Even I, not a law school professor, looked down at the floor to see if there were a pool of blood.

Ann Althouse said...

"Namecalling. Oh Ann, you've descended to a new low!!"

Not a new low. I called someone (else) an "idiot" the other day. Generally, I refrain from that sort of thing, but I do go that low for some of our very special friends.

Simon said...

Those of you who are saying the suit was obviously without any merit are missing the fact that FAIR won in the court below

Correct me if I'm wrong, but didn't a three-judge panel of the Third Circuit hear FAIR - and was not that panel in fact divided? See Forum et al. v. Rumsfeld et al, 03-4433 (CA3 2004). Judge Ambro wrote for himself and Judge Stapleton over a dissent from Judge Aldisert. Doesn't the statement that "FAIR won in the Court below" amount to a statement that they pursuaded two Judges in a case almost certain to go directly to the Supreme Court?

To conclude on something I'm sure we all agree with, I think all agree that clear, decisive and correct decisions will hopefully be the hallmark of the Roberts court.

Simon said...

Ann:
You asked Jeff to "[s]pecify where I said the thing you're attributing to me" - I'm not Jeff, of course, but I feel I can clarify the point.

What he attributed to you:
That you called DADT a military policy when it is in fact a Federal Law.

Where you said it:
In your original post, you wrote: "we've put a lot of effort into enforcing standards of nondiscrimination in our law schools, and we don't like to have to sacrifice that for the sake of the military's Don't-Ask-Don't-Tell policy."

Conclusion:
If it's a Federal law, it isn't "the military's Don't-Ask-Don't-Tell policy" (emphasis added), so presumably, that's what he's suggesting you change.

David Boyd said...

I think Will is projecting his own feelings onto Roberts's prose.

Perhaps we'll have to take everything Roberts says at face value, but then maybe the joke will be on us. The guy is funny. Think he can resist slipping in a little zinger every now and again?

SFGate:

"It is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off," he(Roberts) wrote in 1983.

vnjagvet said...
This comment has been removed by a blog administrator.
Simon said...

"Will is often wrong. He quotes opinions badly and misconstrues what they mean . . . [he] has little expertise or experience to rely on in interpreting legal documents; he doesn't even have a law degree."

Respectfully, lacking a law degree is no excuse for misquoting, or misrepresenting opinions. It doesn't require a J.D. (although to be sure, that'll help), but it does require a certain amount of intellectual honesty and willingness to ask questions that is open to anyone, IMHO.

Of course, I would say that. ;)

vnjagvet said...

I still say that a unanimous SCOTUS opinion against a political lawsuit is a tactical and strategic disaster for the policies espoused by FAIR.

Not only that, but the Roberts decision went out of its way to resolve a series of side issues argued by "distinguished" Amici.

The result of that exercise was to preemptively destroy any of those arguments in parallel litigation.

This case was an object lesson on how not to influence public policy through litigation.

It should be taught in litigation courses for years to come for just that reason.

Simon said...

"Law professors rarely go to court. They cobble together valid but unsound arguments and dare their colleagues to invalidate them for a living. What more do you expect?"

Funnily enough, that's exactly what the dissent from the Third Circuit panel said!

What disturbs me personally and as a judge is that the
law schools seem to approach this question as an academic
exercise, a question on a constitutional law examination or a
moot court topic, with no thought of the effect of their action
on the supply of military lawyers and military judges in the
operation of the Uniform Code of Military Justice"

(Forum, supra, at 84)

Simon said...

"Not only that, but the Roberts decision went out of its way to resolve a series of side issues argued by 'distinguished' Amici."

Yes, and the specific language in which it did so (Fair v. Rumsfeld, slip op at 9-12) ("the Government claims that this question is not before the Court because it was neither included in the questions presented nor raised by FAIR . . . But our review may, in our discretion, encompass questions fairly included within the question presented, and there can be little doubt that granting certiorari to determine whether a statute is constitutional fairly includes the question of what that statute says") (internal quotation marks and citations omitted) gives me hope that they will resolve Carhart v. Gonzales in the manner I think it should be resolved (see Ninth Circuit strikes down Federal Partial Birth Abortion Ban, 1/31/06; Mr. FBPAA goes to Washington, 2/21/06).

37383938393839383938383 said...

Simon, while we agree, so this really isn't a big deal, the ellipse in your quotation of me above blots out language that alters the meaning of my statement. In no way was I suggesting that simply having a J.D.s means one will interpret the law correctly. That is clear from a straightfoward reading of my entire post. , The point is that hubris alone will most certainly get it wrong. And I do not mean to be tart.

Simon said...

CriticalObserver -
Naturally, I apologize for any misrepresentation. :)

Patrick said...
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Patrick said...
This comment has been removed by a blog administrator.
Patrick said...

“but the truth is that we've put a lot of effort into enforcing standards of nondiscrimination in our law schools, and we don't like to have to sacrifice that for the sake of the military's Don't-Ask-Don't-Tell policy.”

Not to be obtuse Ann (since I can’t speak about Wisconsin) but I can say that this is not true at Yale or any other law school that I have experience with. In my experience, non-discrimination policies are trotted out for political reasons not for principled ones.

The FAIR lawsuit is a prime example. The impetus for the FAIR lawsuit is purportedly DADT, but DADT is really irrelevant. Why? Because the military would still violate non-discrimination policies even without DADT because it discriminates on the basis of sex, handicap, age, and probably a couple of other “impermissible” grounds. Getting rid of DADT won’t bring the military into compliance with law school non-discrimination policies.

Also, Yale’s non-discrimination policy, as well as several other law schools’ policies, include a provision about not discriminating based on veterans’ status. Veteran’s status is interesting because there is federal law explicitly requiring federal employers to discriminate in hiring based on veterans’ status. Despite this law, Yale happily lets many federal interviewers participate (SEC, DOJ, etc. . . ) in on-campus interview.

Moreover, how many private employers that interview at Wisconsin can you honestly say don’t discriminate on one of the “impermissible” grounds? I couldn’t find any that interviewed at Yale (including ones from the state of Wisconsin, where I accepted a summer position). Is it entirely coincidence that almost no major private law firm has over 20% of its partners who are female? Also, why are women still not making partner in big law firms in proportion to their law school graduation rate or associate hiring rate? Yale thought these were not coincidences and it hosted several mandatory programs that students had to attend about how women are discriminated against in the law. Apparently, however, when these employers come to interview (and flash big salaries), all is forgiven.

When, law schools honestly try to enforce their non-discrimination polices on all employers (not just ones they don’t like) and try to enact structural change not just in the military but also in the law firms who pay their graduates high salaries, then I think their arguments about how important the non-discrimination policy is will not be frivolous.

The SCOTUS could have smacked down the law schools' hypocrisy a lot more than they did.

Balfegor said...

Most lawyers see an inconsistency between the rule of law and an argument of "I didn't rob the bank for reasons that seemed bad to me.

Yes, but on the other hand, I don't think they see an inconsistency when the same act is criminal or not-criminal based on intent. Or specific intent. Or mens rea, more generally. So it's not like peoples' intentions have no place in the law.

Re: Affirmative Action / Discrimination / Originalism

With respect to the possible historical roots of the law schools' interpretation of the 14th amendment, one could argue that the nature of the 14th amendment (like the other Reconstruction Amendments) is broadly remedial, which is to say, it's intended to help previously disfavoured classes, namely slaves. In that sense, then turning around and using it to help classes that have not been previously disfavoured (i.e. middle-class white men) would contravene that original intent. Under one particular species of originalism, then, it's possible to argue that

We make a distinction between discriminating out of hostility toward a group that has experienced discrimination historically and discriminating to benefit members of such groups.

is a valid and proper way of looking at the amendment.

Because of the whole rigmarole about diversity, that's not the argument schools actually made in court, though, so whether it is legally correct, as an interpretation seems to me secondary to whether it is morally correct, as a policy. And morally, I think the above harm/help distinction is on rather firmer ground, even if I disagree with it.

Aspasia M. said...

The military shouldn't not sign someone up because he/she is gay. What a stupid policy.

How does someone define "gay" anyways?
If somebody experiements once - is that person gay?

And what does being "gay" have to so with being a good soldier?

Answer - nothing! Everyone is a brother or sister in arms.

John(classic) said...

"Or specific intent. Or mens rea, more generally. So it's not like peoples' intentions have no place in the law."

Yes. But the prohibition is on discrimination by race. The law schools intend to discriminate by race. They just think they are doing it for a good cause. Similarly my hypothetical bank robber intended to rob the bank. He just thought it was for good reason.

In criminal law it might be something to consider at the sentencing phase......

ShadyCharacter said...

Patrick, while I am broadly sympathetic to your argument, I take issue with one example you pose: "Also, why are women still not making partner in big law firms in proportion to their law school graduation rate or associate hiring rate?"

As one in the middle of the pack at one of the biggest law firms, I would say it has to do with the biological fact that women, and not men, have babies. Until that changes, I don't see how we'd have parity at the partnership level (though there is now reverse parity for law school admissions and probably soon enough, in associate hiring rates)? Are we going to force women to choose career over family?

ShadyCharacter said...

"reverse parity" of course has absolutely no meaning, but I think it's clear what I meant =)

Simon said...

Geoduck:
"The military shouldn't not sign someone up because he/she is gay. What a stupid policy."

Stupid or not policy, that is not a decision made by the military - it is a decision made by Congress, which the military has no choice but to obey. See 10 U.S.C. §654.


"How does someone define 'gay' anyways? If somebody experiements once - is that person gay?"

For our present purposes, Congress has defined "gay" as follows: "if the "member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act . . . [or if] the member has stated that he or she is a homosexual or bisexual, or words to that effect . . . [or if] the member has married or attempted to marry a person known to be of the same biological sex." 10 U.S.C. §654(b). To ask the military to disobey this policy is very possibly to incite insurrection, for which see 18 U.S.C. §2383.

John(classic) said...

"Those of you who are saying the suit was obviously without any merit are missing the fact that FAIR won in the court below.

FWIW, before oral argument, in a group of four lawyers, the proferred odds had to reach 5-1 before any one would take the bet that FAIR would win in the Supreme Court..

Balfegor said...

If somebody experiements once - is that person gay?

Probably not. My understanding (based on a class lecture by Kenji Yoshino of Yale) is that there is a de facto "Queen for a day" exception to DADT, such that you can have gay sex . . . yet not actually be gay.

Which is probably true, after all, at least to the extent that "gay" indicates a kind of essential and invariant homosexual orientation in one's being. Churchill's quip about "Rum, buggery, and the lash" provides at least anecdotal support for the idea that if you put a lot of men together with few to no women handy, there's going to be at least some men who'd prefer sleeping with a woman making do with a man.

Patrick said...

ShadyCharacter, I understand the biological fact that women, and not men, have babies and that law firms cannot change this. However, law firms do control how they respond to people that have kids, and how they respond is not same for both sexes.

Law firms have several subtle and unsubtle ways of encouraging women who have children to move off the partner track or seek other employment. By-and-large, they do not utilize the same tactics on men who have had children (my wife and I are a good example of this). That is discrimination.

Jennifer said...

The military shouldn't not sign someone up because he/she is gay. What a stupid policy.

It's my understanding that the military doesn't not sign someone up because he/she is gay. Doesn't DADT just specify what a soldier can publicly engage in?

That said, I agree that its a stupid policy. And, regardless, there are plenty of gay soldiers.

Balfegor said...

Continuing the OT discussion of race . . .

I missed this before:

John(classic)
It is the Hatfields and the McCoys raised to consitutional principle--punishing the son for the fathers sins, or the second cousin twice removed, is OK in law school. Group membership is what matters after all, not individuals.

My own view -- perhaps biased by my own racial identity (half-caste white-Asian) -- is that actually, the big losers under affirmative action aren't Whites but Asians.

In California, after racial criteria were excluded from the admissions process by plebiscite, or whatever it was, the Asian enrollment at the top UC (Berkeley) shot up a lot more than the White enrollment, suggesting that it's Asians who were being kept down under affirmative action. Most of these Asians, of course, come from families that only came to the US after the US lifted Asian immigration restrictions in the 60's, and w/ respect to UC Berkeley, were applying to a school located at ground-zero of anti-Asian sentiment in the US from 1880 to 1980 or so, as evidenced by various anti-Asian riots (for both the Chinese and the Japanese, I think), attempts by the local government to implement segregation against the Asian population, and attempts to implement state-level anti-Asian immigration laws, all leading the way up to the crowning glory: wartime internment.

So there's a cruel irony there, I think.

It doesn't look quite as nefarious if you look at other schools in other places, though, because most other parts of ths US don't have that long history of specifically anti-Asian racism.

Simon said...

Jennifer:
"It's my understanding that the military doesn't not sign someone up because he/she is gay. Doesn't DADT just specify what a soldier can publicly engage in?"

Not really. 10 U.S.C. §654(b) says that you can be thrown out of the military for meeting the criteria for being gay (posted ante), and 10 U.S.C. §654(c) says that "[t]he Secretary of Defense shall ensure that the standards for enlistment and appointment of members of the armed forces reflect the policies set forth in subsection
(b)
." I would interpret that to mean that those things that can get you thrown out of the military under DADT should also prohibit your being hired in the first place (which is actually a pretty logic HR policy, when you think about it).

Jennifer said...

which is actually a pretty logic[al] HR policy, when you think about it

Ah, well, in that case the military most certainly does not practice it. Avoiding logic like the plague is a core competence.

I'm just kidding. It's splitting hairs anyway. Geoduck2 is right - its a stupid policy.

BTW, geoduck2, you must be an Evergreen grad. Who else has ever heard of the good old geoduck?

ShadyCharacter said...

Patrick, we've kind of detoured off of the main thread here, but your argument is ridiculous. You write: "Law firms have several subtle and unsubtle ways of encouraging women who have children to move off the partner track or seek other employment. By-and-large, they do not utilize the same tactics on men who have had children (my wife and I are a good example of this). That is discrimination."

This is complete nonsense and I think you must know it. Men who have children tend to continue to work the same hours they did before they had children (which completely sucks!). Women, if they don't quit the profession outright, are more likely to work part-time either officially or in effect. As a result, they may avoid taking on time-intensive matters or roles in a transaction or a case (and therefore miss out on the attendant experience) or the time-intensive client schmoozing that would lead towards the rainmaker partnership track. It sucks, but that is reality. How in the world does this is in any way constitute "discrimination", unless by discrimination you mean that real world events deviate from your utopian preferences of absolute equality of outcome?

To your use of your family’s experience as proof of your point, are you claiming that you switched to part-time or started leaving at 5 and not working on weekends and are still on partnership track while your wife stayed till 10 each night and worked weekends and got passed over for being a mother? Or is it the more common reverse scenario? Where does “discrimination” enter into the picture?

Patrick said...

ShadyCharacter, your statement says it all:

Women, if they don't quit the profession outright, are more likely to work part-time either officially or in effect. As a result, they may avoid taking on time-intensive matters or roles in a transaction or a case (and therefore miss out on the attendant experience) or the time-intensive client schmoozing that would lead towards the rainmaker partnership track.

What if the woman never gets to make that choice? What if expectation at the law firm is just what you expressed (it was where we worked)? Thus women how had children were expected not return to work or work part time, whether or not the woman desired otherwise.

Women who returned after maternity leave were preemptively given lower-profile work and lower profile clients because there was an expectation that they would not want to put in the time necessary for the higher profile cases. Thus, they are effectively pushed off the partnership track whether they want to or not. This doesn't happen to all women in law firms, but it happens to enough to depress the percentage of female partners. That is the discrimination I am talking about.

brylin said...

Apparently some law schools are continuing their resistance. See today's OpinionJournal.com.

Don't they know resistance is futile?

Based on the Court's opinion, perhaps Congress should amend the Solomon Amendment to require that military recruiters get preferential treatment.

And as for Grutter, since O'Connor is gone, shouldn't someone bring another challenge to collegiate discrimination?

Finally, law profs should be very glad that this guy wasn't the judge! (HT to Flares).

ShadyCharacter said...

I know 8 women co-workers who have had children since I started working. 6 have CHOSEN to take the reduced work, increased time with their children approach, knowing that their chances of partnership are greatly reduced. 2 have apparently decided to go career.

Should the firm allocate the finite number of partnerships to women who do not work the hours or have the experience of those who do put in the time?

You would take that ratio of evidence of "discrimination", but I do not think you understand the meaning of the word. It does not mean that the real world outcome doesn't meet your expectations.

Bezuhov said...

"Moreover, acknowledging the quality of the emperor's clothing seems a loyalty test for admission to the professorate."

Wow. Absolutely on the nose. The professorate should take care lest they suffer the same fate as the monasteries that preceeded them, and which they increasingly resemble...

TopCat said...

Ann,

This posting reminded me of Otter in Animal House: "this challenge must be met with a totally stupid and pointless gesture!" So you think Don't Ask Don't Tell is lame and you want to beat up on the recruiters for it. Please remember it's a Congressional Act, not a fit of pique by the evil, evil military guys. Remember further it was the product of Slick Willie Clinton and Georgie Stephanopoulous, who considered it their way of bamboozling the yaboos out in the red states.

Richard Fagin said...
This comment has been removed by a blog administrator.
vbspurs said...

It is difficult to know what to make of an assessment about "writing well" from someone who can rarely write a brief passage without resorting to exclamation points -- an age-old substitute for actually writing well.

You know, I've always wondered what compels a person to write something like this.

The purpose is to unnerve the other person, by posting an insult which even if stupid, is intended to at least discomfort the person publicly.

In short, they wish to ruin a second of your day.

This genius even used a soubriquet "Someone U Know" to further unnerve the recipient that they walk amongst them, and they'll never ever know who it is.

Oooh. Paranoia.

(fingers closing and opening)

Idiot.

Do your parents a favour and grow up.

vbspurs said...

Will meant 'tartness' as a compliment to Roberts and as a dig against law professors. He's saying they deserve Roberts' tartness.

I rather read it that way too, although certainly I only have read Ann's extract of Will's comments.

I remember when this case was being argued in the SCOTUS, and we got to hear the Justices asking the FAIR attorney questions.

(NPR and The Lehrer Report made a big deal out of it, saying that -- as Ann mentioned here in the blog that same day -- Roberts has been more forthcoming than Rehnquist, for appeals to get audio of cases heard before the SCOTUS)

If memory serves, I remember Roberts being rather "tart" to the attorney, by implying that they want to have their cake (accept federal moneys) and eat it too (not have recruiters on campus).

That drew a laugh from the audience, and I remember thinking to myself -- gosh, this guy's good.

Cheers,
Victoria

hygate said...

"Congress approved the Don't-Ask-Don't-Tell policy in 1993.

Is the objection against Don't-Ask-Don't-Tell or the Military itself?"

Exactly. Everyone keeps refering to "the military's" don't ask don't tell policy. The military didn't come up with this policy, the elected officials that the american people voted into office did. The american military has no authority to rescind it and keeping recruiters off campus is not going to get it changed. If ending discrimination against gays is the real agenda then I suggest you take it up with congress, the people who actually have the authority to regulate the military's policies in this area.

Ann Althouse said...

Those who are belaboring the fact that Congress put the policy in a statute ought to face the reality that the military demanded an anti-gay policy. Clinton had promised to end the discrimination, and this was a compromise that was supposed to appease the military. Realistically, Congress isn't going to change it unless the military wants it changed, so let's not act as though the military's preference is irrelevant!

Hey said...

The military is by its nature a VERY conservative institution. It is almost reactionary, in fact, when faced with change (not in terms of politics, though they tend to be conservative; reactionary to the Berkeleyites). This is a very good thing, in that it is what enables the military to create the officers who are devoted to the constitution, their duty, and their fellow soldiers. Tradition, its preservation, and a devotion to the past history of the service helps weld widely disparate people into a cohesive force that will take on the duties asked of it and make the sacrifices required to accomplish the tasks.

So when the military is asked to change its personnel policies it is almost always very resistant to these changes. The military, as far as I can determine, has only accepted pesonnel changes that they see will definitely benefit their ability to do their jobs or that eliminate the cause of very many problems. Hence the enthusiasm for higher education requirements and for the abolition of the draft.

Civil rights changes in personnel policy do not present obvious benefits to the military in terms of the performance of its duties. So thus the forces resist mightily, as they believe that the change will be deleterious to its readiness for no apparent benefit to do its job in the future.

The military dramatically resisted integration in the 40s and continues to resist increasing roles for women. This resistance is rational from the military's point of view, and it is a good thing, overall. It forces lawmakers to consider whether they are really focusing on important equality problems and to acknowledge that there will be temporary and perhaps permanent problems and a diminishment in the services readiness and cohesion. In fact, we did see problems when units were first racially integrated and we have seen continuing problems with having women in the services.

Simply because there are problems, however, does not mean that we should not pursue integration, greater civil rights, and less discrimination within the military. The military will do what civilian authorities demand that it do (see racial integration and the increasing opportunities for women). But sometimes we civilians do not fully understand just what disruptions social changes can cause in the forces.

Racial integration was a very good thing and the problems were short term, as society in general lost its irrational prejudices. Increasing opportunities for women have been a mixed good, as there are far more innate differences that can not be changed or wished away. Allowing out gays in the military is somewhere in between racial integration and gender integration. A substantial part of the problems are due to prejudice and a changing societal view of homosexuals, and to this extent integration will only cause short term problems. To the extent that integration of homosesxuals can create sexual tension between soldiers, difficulties caused by failed or successful relationships within a unit, unwanted advances, and disturbance to other soldiers, then it will be a long term problem.

If Congress and the Executive think that we should accept these problems to stop unjust discrimination, then it is free to do so. If not, don't blame the military, but rather blame cowardly politicians who do not have the courage of their convictions.

I personally am unsure as to which approach is wise. I have seen good arguments on boths sides with regards to the increased opportunities for women in the services, never mind for open homosexuals. All of us should acknowledge that there will be significant costs to any change, just as we should all acknowledge that there are significant costs and loss of good people caused by the current policy.

Dennis said...

"We make a distinction between discriminating out of hostility toward a group that has experienced discrimination historically and discriminating to benefit members of such groups."

Maybe most law profs do but I don't think law schools made that argument in court. Please correct me if I'm wrong, but I believe their argument was that it was imperative that they discriminate in admissions based on race because achieving a diverse student body is essential to the learning process of their students.

Synova said...

Yeah, but...

Knowing you're going to lose but you've got a good cause doesn't excuse the tax dollars spent on this.

What's the difference between bringing a suit that is entirely outrageous and one that is sure to lose? There were no dissenting votes *at all*. And someone thought that maybe they had a valid argument?