May 5, 2005

Expressive litigation.

Lawprof Marci Hamilton has a new column on the Solomon Amendment case, Rumsfeld v. Forum for Academic and Institutional Reform [FAIR]. She explains the difficult First Amendment argument the law school faculty plaintiffs make:
FAIR must claim that anyone who sees military recruiters on campus will assume the military's policy on homosexuals is endorsed by the school. Therefore, the school, by being forced to host the recruiters (or lose funds), is forced, in effect, to mouth the government's message - which, FAIR argues, violates the First Amendment.

But the assertion that anyone would confuse the military's message with the host school's message is ludicrous. It is well-known - and statistics and anecdotes bear out -- that law schools and their faculty are overwhelmingly dominated by liberals. Indeed, the legal academy is famously a haven for liberal orthodoxy and fundamentalism. And one of liberals' well-known values is equality regardless of sexual orientation....

[T]he Amendment doesn't gag anyone, the reality is that any student who signs up for such interviews has to be thick-skinned, determined, or both.... I watched students at NYU Law School literally run the gauntlet to simply interview with the military (let alone take such a job). Thus, it is laughable to claim - as FAIR does, and must -- that the military's policies could, or would, be ascribed to law schools' dominant powers.

Supplying the room for the interview isn't enough to count as the law schools' forced expression of a belief it disagrees with, Hamilton argues, and I'm sure the Court will agree with her.

There's much more in her essay, which you should read, but I'll just add that litigation itself is expressive, and the lawprofs fighting this losing battle are still succeeding in expressing their disapproval of the military's "Don't Ask, Don't Tell" policy. Through the lawsuit, they are winning a great deal of attention to their arguments, and this may be worth doing.

Still, there are two problems.

First, some may think that a court should not be transformed into a political forum. Indeed, many of the Justices themselves think that, and attempts to use the courts this way can provoke them to design restrictive doctrines to prevent it.

Second, the argument getting the attention in the Solomon Amendment case is not centered on attacking the military's discriminatory policy. It's a complicated free speech argument that isn't persuasive. Worse, it's about using free speech ideas to empower the person who is not speaking to control the speech of the person who wants to speak. What's the point of promoting that idea?


Sloanasaurus said...

The decline of every civilization begins when society no longer wants to serve in its own military. It happened with Carthage, Rome, and many others. It is now happening today: first, in Western Europe where the militaries are a joke and now in the United States where a solid minorty now despises military service. This litigation is a reflection of this minority wishing to become dominant.

The real question is what will happen to the American people? Will we be wiped out in a complete genocide like Carthage or will we eventually pledge our allegiance to other entities (as with the Roman empire).

Abraham said...

There is going to be a solid minority in any population that will abhor and scorn martial values and military service. I do not think that the United States is in any way unique in this regard; in fact, I think it maintains one of the strongest martial traditions in the world, thanks in no small part to its Jacksonian cultural influences which, while not the subject of headlines, runs very strong to this day.

Sloanasaurus said...

Perhaps. However, the elimination of military recruiting at major universities is a step in the direction of a future non-citizen army. A step to making the anti-military minority into a solid majority and cultural norm.

EBuz said...

Compelled speech doctrine does not require that there be a danger that the public will misattribute the speaker's message to the person who does not want to speak. No one misattributed "Live Free or Die" on Mr. Maynard's license plare to Mr. Maynard himself, or the ratepayers message on PG&E's billing statement to PG&E. Yet both cases are examples of impermissible compelled speech.

Ann Althouse said...

Abraham: Good point. We should remember that when this country was founded, there were prominent, respected pacifist sects, as the debate proposing the Second Amendment reveals.

Ebuz: In the cases you cite, the government was forcing someone to say something, but the Solomon Amendment is not forcing the law school to say anything (unless you first attribute someone else's speech to them).

Uncle Jimbo said...

All the fineries regarding the points of law are interesting, and it seems likely this amendment will be upheld and hopefully enforced.

I think Ann's point about politicizing this is very apt. Another social issue is being determined or at least argued in court, rather than the Congress or Executive where it belongs.

Don't ask, don't tell is gone soon, what excuse will those who simply dislike the military use then to try to ban recruiters? I don't believe it is primarily the policy on gays that is prime here. I think it is a stalking horse for administration opponents and anti-war activists.


Uncle J

Military Matters

EBuz said...

"the Solomon Amendment is not forcing the law school to say anything"

Not forcing -- because of the funding condition? Congress can't condition funding on violation of a constitutional right, right?

Or are you saying that providing assistance to the military's recruiting (because SA requires law schools to treat military as they do other employers) is not "speech"?

Ann Althouse said...

ebuz: yes, to your last question. It's a nondiscrimination requirement of equal access. The condition isn't a restriction on the law school's speech, just a requirement of equal access. That is, FAIR needs to characterize it as being about the law school's speech to win, and that's where Hamilton and many others think they are going to fail. It did work in the 3d Circuit, but it's a rather tortured argument and it is about empowering the law school to repress speech, not freeing the law school to speak.

Sloanasaurus said...

In response to Abraham/Althouse:

Being a pacifist is quite different than hating or being indifferent to your own society and culture. Civilization can thrive with the former, but not with the latter.

Al Maviva said...

I think the Court could well rely on Lawrence - it's "transcendant" view of the individual, as Justice Kennedy so dreamily put it, and strike the Act.

Kennedy frames the question in Lawrence, whether "traditional values, ethics or morals" can ever pose a rational basis for the law. Apologists for the winning-gay-rights-through-litigation faction said at the time, that Lawrence only applied to criminal laws, but I don't see how you could consistently say that the rational basis for criminal law, is somehow more stringent than the rational basis for the civil law.

Moreover, the military's preferences, if you will, are based on the morals, ethics and traditions of their troops, and arguments about things that the Court is likely to trample, such as unit cohesion, preventing the intrusion of sexual tension into the close relationship between the troops, etc. (The presence of women in many units will factually undermine much of that argument, at least as to non-combat arms troops).

In short, I'd look for the government to lose, and lose big in this case, not because the law demands it but because I think the Supreme Court will not be able to refrain from solving-by-constitutionalizing yet another thorny public policy problem. The power to write the laws and policy, once arrogated to the courts, are not easily ceded back to the legislature. It's just too darn tempting for the Court to do otherwise.

And I'm with Prof. Hamilton on this. As a combat vet who knew gays in the service, I'm not sure the ban is a good thing. But I'm pretty sure that litigating this problem out is the wrong way to go, and really incensed that the law schools - who claim the high ground here - aren't principled enough to give up the federal largesse.

Ann Althouse said...

Al: The Solomon Amendment wouldn't just deprive the law school of federal grants, but the entire university! Think what that means for a large research university, with science departments and so on. It is sheer coercion.

Bruce Hayden said...

Yes, it is a big hammer. But so what? It is plain silly to think that most of the law schools truly operate independantly of their universities.

Indeed, a friend of mine who teaches law is constantly ragged that the university for which he works treats the law school and the business school there as cash cows, essentially supporting the remainder of the university.

Ann Althouse said...

Bruce: I'm just countering the argument of the people who are writing that the law schools should stand by their principles and forfeit the money. The answer is, we can't, because the university won't let us.

Bruce Hayden said...

Let me note that this is not really about 1st Amdt rights of the students, nor, really the schools, but of the faculty of the law schools.

A good friend of mine teaches at a law school and retired recently as a reserve JAG LTC. He would hit those he was mentoring up to join, and I probably would have if I had been below the age cutoff then in force (it was recently raised, so if that were today, I could have). A couple students a year would end up joining - and he would, I am sure knowing the way he operates, get a small signing bonus. And this was, of course, pre 9/11.

The point though is that there were always law students willing to look into JAG programs and to even join. The faculty at these schools are, to my mind, attempting to forclose this choice, as much as they can, through banning JAG recruiters from campus. And thus, my contention that the purpose of this policy is, in essence, to force the political views of the faculty over the students.

Bruce Hayden said...

One more thought. I recenty read David Bernstein's book "You Can't Say That". In there, he condemns the left's attempts to silence free speech and inhibit free exercise in the name of antidiscrimination.

In one of his examples, antidiscrimination was in essence shoved down the throat of a school using just this justification - Congress' spending power. The school was not accepting any direct money (as these schools are), but rather only indirect monies, through, for example, GI Bill benefits. This was not enough to immunize the school.

Indeed, this may ultimately be where the Court comes down - that nondiscrirmination is not as compelling an interest as the military's need for JAG officers in a time of war, esp. since the former included indirect monies, and the later direct monies.

Kathleen B. said...

Prof. Althouse - I think I agree with you and Prof. Hamilton. But what do you think about the precedent of Boys Scouts of America v. Dale, as discussed today in Slate?(
"The opponents of the Solomon Amendment make an almost identical argument [to Dale] about being forced to accommodate an employer that discriminates. The 3rd Circuit Court of Appeals accepted the analogy, holding that "just as the Boy Scouts believed that homosexual conduct is inconsistent with the Scout oath, the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness."
This seemed somewhat persuasive to me, what I am missing?

Ann Althouse said...

Kathleen: It wasn't just that the Boy Scouts had a belief and wanted to discriminate to express it. They were employing scout leaders, who would be in the position of expressing the group's message (that homosexuality is wrong). The law schools may similarly have a message (that discrimination against homosexuals is wrong) but the process of admitting various employers to the on-site recruiting processes is not so closely a way that the law school expresses itself. As Prof. Hamilton notes, law schools admit all sorts of employers to on-site recruiting who think all kinds of different things, and no one attributes the employer's message to the school. The school just wants the employers to adopt its values. With the Boy Scout leader, he really was "speaking" for the organization in being a role model to the Scouts. If they knew he was gay, the Court said, he couldn't effectively communicate the message that it's wrong. You just can say that the recruiter is speaking for the law school in the same way. Admittedly Dale could be extended, as the 3d Circuit did, but it doesn't require that outcome.

Ann Althouse said...

I meant "You just can't say that the recruiter is speaking for the law school in the same way."

Kathleen B. said...

Prof. Althouse: thanks for the response. very interesting.