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Will on Rumsfeld v. FAIR
One of the most striking things about the oral arguments presented last week in Rumsfeld v. FAIR is how provincial the Supreme Court justices managed to make FAIR's case look. FAIR's argument is that the Solomon Amendment violates law schools' expressive rights when it compels those schools to allow military recruiters on campus if they want their institutions to continue to receive federal funding. In essence, law schools are protesting the fact that the Solomon Amendment does not allow them to protest "don't ask, don't tell" by barring military recruiters from campus. But the glaring holes in this argument--that law schools are not barred by Solomon from expressing their disapproval of "don't ask, don't tell," that law schools freely express how much they do disapprove of "don't ask, don't tell," and that law schools could bar recruiters altogether if they could convince their institutions to forego federal funds--were readily identified by the justices, and just as readily exposed for the illogical lacunae they are. In this sense, last week's oral arguments marked an embarrassingly public display of academe's ideological insularity. The sheer provinciality of FAIR's argument--which was apparently conceived without a clear sense of how it might play to judges who business it is to take a content-neutral view of expressive issues--is perhaps the most interesting and revealing thing about it.
Certainly this is George Will's sense. In a Washington Post op-ed published yesterday, Will had some harsh but fair things to say about what FAIR's case can tell us about the modern academic temperament. "The entitlement mentality produces petulant insistence on an ever-higher ratio of rights to responsibilities," Will begins. "Unsurprisingly, this mentality flourishes on campuses, where tenured faculty and privileged students live entitled lives supported by the taxes and generosity of others. The mentality was on vivid display in the Supreme Court on Tuesday when an association of 36 law schools and faculties asserted an audacious entitlement." He continues thus:
During oral arguments last week, the schools had many occasions to wince. Regarding the schools' theory that any conduct can be imbued with "communicative force," Justice Antonin Scalia wondered whether the schools might also justify banning military recruiters during a war the faculty disapproved of, because allowing the recruiters would be tantamount to the schools' endorsing the war.Or because the professors object to the military's barring women from combat or using land mines. The possibilities are as numerous as the professors' reasons for interposing their moral sensibilities between Congress and its constitutional power to "raise and support armies."
Furthermore, more than four other justices probably share Scalia's incredulity concerning this implication of the schools' argument: When an individual or institution gives as a reason for violating the law the fact that he or it wants to send a message, the violation acquires First Amendment protection. By such reasoning, a school barring blacks from campus could say its conduct is infused with an expressive purpose, hence shielded by the First Amendment.
The schools' selective sensitivity about that amendment is amusing, given that many universities use speech codes to enforce "progressive" sensibilities and compel students to pay fees that finance speakers and other expressive activities offensive to many of those compelled. Schools eager to ban military recruiters from a few hours of access to students who want to meet them have faculties that expose students to a one-sided bombardment of political views. Furthermore, universities are nurseries of "progressives" who support campaign regulations by which government supervises the quantity, content and timing of political speech, and who favor public financing of campaigns, which requires millions of taxpayers to fund political advocacy they oppose.
Will reads Rumsfeld v. FAIR as both an expression of the arrogance that saturates academic culture and as a potentially historic opportunity for the Supreme Court to check that arrogance while exposing it for what it is. As such, law schools' attempt to convince the Court that the Solomon Amendment disrespects their rights may ultimately do a great deal more to help the public understand just how willing those schools are to disrespect anyone who disagrees with their official political positions.
Posted by acta online at December 12, 2005 02:47 PM
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