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.