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It's official: FAIR didn't play fair

FAIR's First Amendment challenge to the Solomon Amendment never made much sense. In fact, it was so nonsensical that the Roberts court mocked it when it ruled last month that the expressive rights of law schools are not violated by the government's requirement that schools receiving federal funds must allow military recruiters on campus. "The Solomon Amendment neither limits what law schools may say nor requires them to say anything," Roberts wrote. "Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds." Roberts went on to express incredulity that there could actually be any confusion about the Solomon Amendment's constitutional legitimacy. Noting that prior Supreme Court rulings have determined that high school students are capableof differentiating between speech a school is endorsing and speech a school is required to permit, Roberts witheringly remarked that "Surely students have not lost that ability by the time they get to law school."

So nonsensical was FAIR's constitutional argument, and so thoroughly dismissive was the Court's ruling, that George Washington University law professor John Banzhaf III was moved to pen a column for the Chronicle of Higher Education expressing his deep concern for not only the insularity of an academe that could seriously support FAIR's position, but also for the lack of understanding of the law evinced by the argument itself. In "When Law Professors Don't Know the Law," Banzhaf observed that the constitutional law professors who built FAIR's case "should receive failing grades in their own field," but "should probably also receive low grades in litigation. They pursued a case that has backfired -- and, in fact, now provides a constitutional green light for the government to intrude even more upon the activities of higher-education institutions."

Writing as someone who does not support the Solomon Amendment, Banzhaf did not mince words:

How could so many nationally known law professors at top law schools like those at Harvard, Yale, and Columbia Universities--and my own law school--have been so wrong in how they chose to challenge the Solomon amendment and in asserting that the statute violated the First Amendment under no less than four different constitutional theories? Every single justice who participated--liberal, conservative, and middle-of-the-road--ruled without exception that every legal theory the law professors advanced was without merit.

If all those top constitutional scholars honestly believed the arguments that they publicly presented-- that the Solomon amendment was an unconstitutional infringement on free speech and that the Supreme Court would strike it down--they were so clearly mistaken that it casts some doubt on their competence. To incorrectly predict one Supreme Court decision is not unusual, but when all of their different constitutional arguments fail to sway even one justice (and even to the point of writing a concurrence), red flags should go up.

On the other hand, if the law professors knew that their constitutional arguments had virtually no chance of being accepted by the high court, there is a certain hypocrisy in making those claims over and over again in public, including perhaps in their classes, and even a reckless disregard of the consequences of bringing a constitutional challenge that could easily backfire--which it did.

Banzhaf was right to smell a rat. His recognition that FAIR's argument was so bad that it could very likely have been made in bad faith has now received corroboration by none other than FAIR's leader, Boston College law professor Kent Greenfield. Greenfield was honored Saturday at the first annual Gay and Lesbian Legal Advocacy conference; accepting his award for his work challenging the Solomon Amendment, Greenfield acknowledged that the suit "wasn't really about free speech" as FAIR had claimed, but about "equality." The free speech argument was devised as part of FAIR's attempt to come up with a "creative" way of challenging Solomon.

This is a fascinating --and highly impolitic -- admission. Lowering his guard in the supportive setting of the awards ceremony, Greenfield did not stop to think that there might be reporters in the room and that his words might be reported to a public less willing to wink and nod at FAIR's legal hijinks. Greenfield is now on record as admitting that FAIR's case was never really serious about its own claims. He has acknowledged that FAIR invoked the First Amendment not as part of a sincere effort to ensure expressive rights on campus, but as part of a manipulative strategy for smuggling an activist agenda into the Supreme Court.

It's now official: FAIR and its numerous amicus supporters --among them the AAUP and a consortium of elite law schools -- essentially used the First Amendment as an ideological Trojan horse. Trying to hide a partisan agenda in what they hoped would pass for a content-neutral case, FAIR and its backers have engaged in the worst sort of litigious cynicism. Close observers of academic politics instinctively knew this all along. But now they have a confession -- right from the Trojan horse's mouth.

Posted by acta online at April 11, 2006 10:39 AM

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Posted by: anon at April 11, 2006 05:03 PM

Posted by: Federal Dog at April 12, 2006 06:59 AM

Posted by: anon at April 17, 2006 12:02 AM

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