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Monday, December 12, 2005

Brilliant Legal Minds

Quote of the day: "Thirty-six leading law schools, on the assumption that doing so would help them, have just advised the United States Supreme Court that contemporary American legal education bears meaningful comparison to a Klan assembly."

This comes from an article about the case of Rumsfeld v. FAIR, in which law schools argue that being forced to allow the military to recruit on equal footing with other employers as a condition of federal aid to their Universities violates their First Amendment rights. Never mind that the same law schools are free to protest those appearances, or make clear they don't agree with "Don't Ask, Don't Tell", or even refuse the government aid. FAIR's position seems to be that the government shouldn't be allowed to attach conditions to the federal aid, even though this was a tactic they were extremely fond of when it came to forcing schools to institute affirmative action (think Grove City).
Frankly, as the article notes, it makes me wonder about the value of my legal education.

5 Comments:

Blogger Charlie said...

"FAIR's position seems to be that the government shouldn't be allowed to attach conditions to the federal aid"

I don't think that is their position. The federal government's ability to attach conditions to receipt of federal funds is pretty well established. But it's also well established that these conditions can't impair the exercise of constitutional rights. The school's contention is that their policy on recruiters, i.e. that only recruiters who don't discriminate on the basis of sexual orientation may recruit on campus, is constitutionally protected speech,(similar to the boy scout's contention in a different case that the decision not to allow gay scout leaders was protected speech), and that the fedearl government cannot withold funding if it means suppressing this particular speech.

2:04 PM

 
Blogger Madisonian said...

Mark,
I agree that the conditions cannot interfere with a constitutional right, which is why FAIR's 1st Amendment argument is so important to their case. However, since "Don't Ask, Don't Tell" is actually a federal law, it would seem their target should be Congress (i.e. the group giving them money) as opposed to the military. After all, when Bob Jones wanted to accept federal money (actually, tax-exempt status) but continue its policy of prohibiting interracial dating which it said was required by its religious teaching, I doubt any of the FAIR contingent would have supported that argument.
I think both FAIR and Bob Jones were wrong, for the record. I'm more troubled by the constitutional hypocrisy of the people who taught me the law.

4:14 PM

 
Blogger Charlie said...

After all, when Bob Jones wanted to accept federal money (actually, tax-exempt status) but continue its policy of prohibiting interracial dating which it said was required by its religious teaching, I doubt any of the FAIR contingent would have supported that argument.

The bob jones case is similar but there's one major difference: The government cannot constitutionally support an school that discriminates on the basis of race (bob jones) whereas there's no constitutional prohibition on government support for a school that refuses to accomodate employers that discriminate on the basis of sexual orientation. (yale, et.al.) It was the equal protection clause that justified the constraints on the money to bob jones but there's no equivalent constituional concern with respect to these law schools.

With respect to "don't ask don't tell" that's true that it is a federal law and in fact FAIR has conceded that the law is constituional. But that still doesn't mean they can constitutionally be induced to "say" that they agree with the law.

I can understand how the law schools' argument can seem silly at first but when you get right down to it I really think they're right.

5:08 PM

 
Blogger Madisonian said...

Let me try and understand this argument:
1) The federal government cannot condition federal money on a requirement which violates a constitutional right.
2) Law schools have a constitutional right (free speech/association) to discriminate against a group with whom's message they disagree. (Military's homosexual discrimination)
3) This is true even when the message with which the law school disagrees is required by a federal law, which itself is constitutional. (Don't Ask, Don't Tell)
4) Despite the government's overwhelming interest in a well-educated/trained military, and the fact that law schools could post signs/give lectures saying they disagree with the military's (really, Congress') policy, the balancing test ways in the law schools favor.

In the end, I simply can't see how this argument can carry the day. While I freely admit you can characterize #4 differently (slight inconvenience to the military, etc.), I simply can't see the Court accepting this argument (as oral arguments suggest they won't), nor can I find any real constitutional support, especially since homosexuality is not a protected class.

Interesting side argument: While the government has the constitutional authority to forcibly conscript every single male at the law school, it cannot require that the military be given equal access.

7:07 PM

 
Blogger Charlie said...

Yep, that's my understanding of the argument. And I agree that if the law schools lose, it will probably be on step 4. I also heard the same thing about the oral argument.

But you can see there's something there right? It's not an easy case. Even though homosexuals are not a protected class, the feds are asking these schools open up their resources to an organization whose hiring practices they find objectionable, all for the sake of the probably very small number of students who would not decide to go into the military but-for on campus recruitment. You might think its a stupid policy for the law schools to have but putting up with stupid stuff is not new to first amendment jurispurdence (like the klan case you mentioned earlier).

Your draft example is interesting. Chalk that up as one more constitutional anomoly. Here's my all-time favorite constitutional absurdity: Until Lawrence v. Texas in 2003, you could plausibly argue that sodomy could be constitutionally prohibited (because not protected by the right to privacy) unless you were videotaping it for distribution (beacuse protected by the first amendment).

7:36 PM

 

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