Media Very Critical of Law Schools and Law Profs Who Bungled
 the Solomon-Amendment Military-Access-to-Campus Case

Virtually all major newspapers and columnists supported the Supreme Court's unanimous decision upholding the access of military recruiters to campus, and many – even those opposing the military’s policies on gays, and some of the Nation's most liberal  – went out of their way to sharply rebuke the law schools and law professors who brought the case which has now backfired and opened the doors to campus access even wider.

The law professors who put the FAIR case together and developed the legal theories bungled the case in at least three ways:
* Their four legal theories, far from having any chance of being accepted by a majority, were rejected by every single justice, including even liberal ones
* They failed to anticipate the hidden danger -- that the Court would say it's ok to require access to campuses even if they don't accept federal funds
* Harvard's statutory interpretation argument was soundly rejected, although six justices went to Harvard Law

Here are a small sample of the media comments which are so critical of the law professors, including some publications which likewise oppose the military's "don't ask, don't tell" policy.  Those listed below include media which are generally regarded as liberal, as well as comments from several noted law professors. There were also some interesting responses reported in the Harvard and Yale newspapers.

My own views are set forth below in an excerpt from INSIDE HIGHER ED, as well as in a longer editorial piece in the CHRONICLE OF HIGHER EDUCATION.

USA TODAY: When Chief Justice John Roberts was in private practice, a client with a weak case demanded to know why he had lost 9-0 at the U.S. Supreme Court. "Because," Roberts replied dryly, "there are only nine justices."  On Monday, the Roberts-led high court delivered a similarly resounding rebuff to a group of the nation's law schools.” . . .  as the liberals and conservatives on the Supreme Court agreed, they don't have a constitutional leg to stand on.

NEW YORK TIMES: SUPREME COURT SMACKDOWN! "  Hundreds of law professors at the nation's finest law schools, representing the all-but-unanimous views of the legal academy, filed a series of briefs last year on one side of a Supreme Court case. On Web sites and in lecture halls, the professors spoke out about the case, which they called a crucial test for gay rights and free speech. Marshalling their collective intellectual firepower and moral outrage, the professors, from Harvard, Yale and elsewhere, made it sound obvious: Universities should be allowed, they said, to take government money but oppose the military's policies on homosexuality by restricting military recruiting on campus. On Monday, the best minds in the legal business struck out. The vote was 8-to-0 against them -- a shutout, a rout, a humiliation. . . . 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.
     Then there is the clueless law professor theory. 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. ''There is often a feeling that if something is morally wrong it must be legally wrong and that clever arguments can bring those two things into alignment,'' Professor Schuck said.  The elite law schools have for decades been overwhelmingly liberal, Professor Schuck said, and that may have blinded professors to problems with their arguments. . . .''If you put together a Vietnam legacy, a gay rights ideology, the idea that courts can solve all problems and the legal academy's echo chamber, you get this result, '' said Joseph Zengerle, an adjunct professor at George Mason who helped write the brief.  . . . ''Unfortunately,'' said Laurence H. Tribe, a law professor at Harvard, ''a great many very smart people were so close to the issues that they failed listen to those of us who said this was a really difficult argument.''

INSIDE HIGHER ED: Other legal experts questioned whether the law schools and professors who challenged the Solomon Amendment had done so in a way best designed to achieve their ultimate goal. John Banzhaf, a law professor at George Washington University, noted that the court had roundly rejected the views of both FAIR and of groups of constitutional scholars from leading universities that had filed briefs challenging Solomon.
     “One interesting part of today’s ruling,” Banzhaf wrote in an e-mail message, “is how so many nationally known law professors at top law schools like Harvard, Yale, and Columbia (and my own law school) could have been so very wrong in putting together this lawsuit to challenge the Solomon amendment, and in asserting that the statute violated the First Amendment under no less that four different constitutional theories. Every single justice who participated — liberal, conservative, and middle of the road — ruled without exception that all of the legal theories they advanced were without merit.”
     The professors may just have been wrong from a legal standpoint, Banzhaf wrote — but it is even worse, he suggested, if they proceeded with the case because they put their political views, “based upon their concerns about the underlying interests of gays or their desire to control access to their campus,” ahead of their legal judgment.  “When all of their predictions turn out to be so wrong, it only leads credence to the arguments that we law professors live in ivory towers oblivious to the real world, or that our publicly expressed opinions are based more on liberal guilt than hard-nosed meaningful real-world analysis,” he said.

FLORIDA SENTINEl: “Defending the First Amendment does not mean stretching it beyond all recognition to justify unrelated actions. Law schools, of all institutions, should know better.”

WASHINGTON POST:  The Supreme Court's unanimous decision yesterday upholding the Solomon Amendment is no surprise. It offers the correct answer to the legal question the case posed: . . . It "trivializes the freedom protected in [those cases] to suggest that it is."  It also trivializes the plight of gays in the military to focus on the ancillary consequences of the gay ban for American law schools. Universities are not the primary victim here. The real problem, which this litigation has tended to obscure,  . .  IN AN EDITORIAL WRITTEN BEFORE THE SUPREME COURT'S DECISION, UnFAIR BUT NOT ILLEGAL:  But not every bad law offends the Constitution, and this litigation is something of a misfire. . . .  As a legal matter, the [law school's] claim seems wrong.  . . . The repeal of "don't ask, don't tell" may not be hastened by litigation focusing on its ancillary impact on law schools, but repeal remains the right solution.

COLUMNIST GEORGE WILL, PROFESSORS OF PRETENSE:  "The institutional vanity and intellectual slovenliness of America's campus-based intelligentsia have made academia more peripheral to civic life than at any time since the 19th century. On Monday its place at the periphery was underscored as the Supreme Court unanimously gave short shrift to some law professors who insisted that their First Amendment rights to free speech and association were violated by the law requiring that military recruiters be allowed to speak to the professors' students if the professors' schools receive federal money. . . .  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."

WASHINGTON TIMES, AN ON- AND OFF-CAMPUS LEGAL VICTORY: “Not only was this a sound legal victory, but also a firmly stated rebuke of the anti-military bias fashionable across the nation's law schools. . . .  It's remarkable that all eight justices agreed to this sweeping decision. One explanation is that FAIR's case was damaging enough to warrant a stinging and indisputable precedent, as unlikely as Congress is to act on it any time soon.”

LOS ANGELES TIMES,  FLAWED LEGAL LOGIC [12/8/05]:  Their suit was heard by the Supreme Court on Tuesday, and the proceedings underscored the two toughest questions in this case. First, how could the nation's top law schools, overflowing with brilliant legal scholars, have agreed to make such an absurd argument?  . . .. But their constitutional argument is embarrassingly weak.  It's also dangerous. The federal government's constitutional right to attach conditions to its spending is well established, and for decades it has been a catalyst for social progress. Many organizations have ended discriminatory practices rather than face the loss of federal funds. Now these law schools argue that accepting the attached strings to their federal funds violates their rights to free speech and association, forcing them to abandon their values to endorse the military's hiring policies.  That's nonsense. If the justices were to buy it, plenty of organizations could go back to discriminating against women and minorities while still taking taxpayer money. . . .. Law schools should step back from their self-indulgent campus politics and realize that it is in the national interest to have smart, well-rounded law school graduates join the military, and that in our democracy there are plenty of other ways to try to change ill-advised laws.

SAN FRANCISCO CHRONICLE: Clearly the law-school litigants believe they have a constitutional right to thumb their nose at military policies, while burning through tax dollars paid by voters who, as a rule, hold those who serve in the military in high esteem -- and no doubt respect soldiers more than they respect lawyers. It's so, well, lawyer-like for academics to argue that they have deeply-held convictions -- but that doesn't mean they should have to pay any consequences for them. . . .  Pentagon rules discriminate against women by barring all women from serving in certain combat positions. I wondered: If ivory-tower elites truly oppose discrimination, why didn't they challenge the Solomon Amendment on military policies that discriminate against all women? . . .  I see the suit itself as the height of hypocrisy.”

THE OREGONIAN:  In an 8-0 ruling, the Supreme Court laughed and laughed [at the arguments]

ARKANSAS DEMOCRAT-GAZETTE: It came as no surprise this week when the U.S. Supreme Court came down firmly on the government's side in Rumsfeld v. FAIR-not after the justices hearing the case had given mercifully short shrift to the other side when they heard the oral arguments. That was the side of some of the country's most prestigious law schools-Harvard, Yale, Columbia and all that ivy-covered crew. , , ,. [of the legal arguments] That's not just creative thinking, it's real nerve.  But the Supremes weren't impressed. At least not in a good way. By the time he was through handing down the court's unanimous opinion, its still-new chief justice-John Roberts-had found more holes in the law schools' case than in the Houston Texans' line. . . . Or so these distinguished law schools were reduced to arguing. To borrow an observation from George Orwell that never seems to lose its relevance: "One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool.''

CHICAGO TRIBUNE, LAW SCHOOLS FAIL HIGH COURT TEST: “Faced with a lawsuit brought by an association of law schools and law faculties, the Supreme Court suggested Monday that the complainants spend less time teaching and more time studying. They flunked a test in a way that would embarrass a first-year student.”

DETROIT NEWS: “The U.S. Supreme Court, in a unanimous 8-0 decision, told the faculties of 36 prominent law schools on Monday that they didn't seem to know much about the law. . . .Now it's nice to see the law professors eat some crow at the hands of the Supreme Court. . . .  And if the professors are serious about resisting the supposed intrusions of the federal government, why do they never seem to oppose any other efforts by Washington to regulate their affairs? . . .  But what I really think is even worse than the suspicion that the professors don't know the law. I suspect the 36 law schools, ranging from Georgetown to Stanford, were actually smart enough to know that their case was sheer nonsense. C'mon -- are our law professors such tender flowers that the mere presence of a military recruiter impinges on their freedom of speech? But the law schools felt they had to go forward with the case anyway because the gods of political correctness back on campus demanded it.”

ROCKY MOUNTAIN NEWS: It would be interesting this week to be in the classrooms of the law schools belonging to the Forum for Academic and Institutional Rights to hear the professors explain how they lost - got whacked, really - 8-0 in a high-profile case before the Supreme Court and allow them the same access and facilities as other recruiters.”

BOSTON HERALD: “We have to assume the ivory-tower academics squawking about the inhumanity of it all are the same ones who (rightly) championed Title IX, which carries the same loss-of-funding should campuses discriminate on the basis of sex. Of course, ``anti-military'' discrimination isn't exactly condemned in the halls of academia. . . .  They can hold their breath and stamp their feet, if that's how they choose to protest the policy on gays (which federal courts have ruled constitutional, by the way). But if you want the federal dough, you play by the federal rules. It's a concept even a Ph.D. can understand.”

COLUMNIST WILLIAM MURCHISON: “Not just from Antonin Scalia, and not just from Clarence Thomas; rather, from a unanimous U. S. Supreme Court this week came the juicy rebuke to 36 law schools trying to bar military recruiters from their premises. The learned justices put the matter more elegantly, not to mention circumspectly, but basically they said to the law schools and law profs demanding to keep our government's recruiters at bay: Can’t you guys read? Or is it that you don't want to? . . .  It's reassuring meanwhile, as per the Rumsfeld decision, to learn that the academics can push illogic only so far, with any expectation of prevailing.”

THE HARVARD CRIMSON, ROBERTS REJECTS HIS PROFS' BRIEF: Chief Justice John G. Roberts Jr. ’76 rejected an argument put forth by 40 Harvard Law professors when he delivered the Supreme Court’s opinion in a major military recruitment case yesterday. In the first paragraph of his holding, Roberts singled out the Harvard professors’ brief and later wrote that the Harvard faculty members’ interpretation of the Solomon Amendment is “clearly not what Congress had in mind.”  . . .But the Harvard professors’ tactic did not sway their former student Roberts—nor did it convince any of the five other justices who attended Harvard Law.

YALE DAILY NEWS: But law professor Peter Schuck said that while he is personally opposed to the military's discriminatory policies against gays, he did not join the Law School's suit because he felt it was the wrong approach to opposing the ban on openly gay soldiers.  "The Law School's circuitous effort to use their students as a kind of way of expressing the school's disapproval of 'don't ask, don't tell,' is not a sound pedagogical practice," Schuck said. "I think [Monday's decision] is the right decision, and so I'm very pleased.
WEEKLY STANDARD,  HOW DID SO MANY PROFESSORS MISUNDERSTAND THE LAW?: Roberts's opinion does give rise to, and leaves unresolved, one nonlegal but rather large and disturbing question: How could so many law professors of such high rank and distinction be so wrong about such straightforward issues of constitutional law? . . This dazzling array of eminent law professors proved incapable--even after hiring the best Democratic party legal talent money could buy--of advancing a single legal argument persuasive enough to pick off even a single dissent from the four more progressive justices on the court--Souter, Breyer, Ginsburg, and Stevens--or to provoke even a single concurrence expressing a single demurral on a single point of law from Chief Justice Roberts's opinion. . . . With their legal arguments publicly and authoritatively eviscerated by Roberts's opinion, what was the response of FAIR's attorneys and the company of distinguished law professors enlisting in the cause? . . . Perhaps the law professors are simply poor advocates, unable to craft compelling constitutional arguments even on an issue--their own free speech--that is near and dear to them. Or perhaps they cynically believed that, there being no major difference between law and politics, the more left-leaning justices would side with their ostensibly progressive cause, however ungrounded in constitutional text, history, structure, or precedent their legal arguments were. Or perhaps, knowing their case was a bad one, they nevertheless sought a symbolic expression of their support for gay rights. . . .  Unwittingly, FAIR and its many allies among law professors at the nation's leading law schools did perform one public service. They gave Chief Justice John Roberts and members of the Roberts Court an opportunity to demonstrate in clear and convincing language that the First Amendment is not to be trifled with, and that the U.S. Supreme Court does not gladly suffer the rank politicization of the law.