Posted 7:24 AM by Robert

The Hypocrisy Tsunami

Reports from the Supreme Court hearing strongly suggest that the Court will unanimously uphold federal laws (the Solomon Amendment) that require universities accepting federal grant money to allow military recruiters to interview on their campuses in equal dignity with other recruiters. The Solomon Amendment had been challenged by some universities (especially their law schools) as imposing an "unconstitutional condition" constituting violation of free speech and other rights under the First Amendment. The law schools' theory is essentially that recruiters' on campus statements constitute speech of the schools - and that requiring the schools to admit the recruiters therefore amounts to forcing the schools to speak in favor of the recruiters policies (including discrimination against gays). The law schools actually go so far as to analogize themselves to the Boy Scouts (!), with the Solomon Amendment's requirement that the schools allow recruiters as a condition for receipt of federal grant money being analogized to the New Jersey law that unconditionally required the Scouts to admit gays. (The irony of this gaggle of liberal the law schools, which mostly deplored the Supreme Court's vindication of the Boy Scouts' First Amendment rights, now seeking to invoke that decision though tenuous and far-fetched analogies, is obvious.)

The schools' argument is preposterous and bizarre - all the more so because a decision in the schools' favor would ultimately be a disaster for the schools. That the New Jersey law overturned by the Supreme Court imposed a mandate, not a condition, is only the beginning of the weirdness - but it's enough to indicate that the Boy Scout precedent is not very close. Statements made by recruiters have never been imputed by sensible people to the school on whose grounds the statements are made. Do the law schools maintain that their students are too stupid to figure that out? Most Boy Scouts I have known could figure that out right away.

The real issue here is not "forced speech." The law schools want to express their views by the action of barring recruiters and thereby deliberately infuse their action with expressive content. But merely designating an action as having expressive content doesn't alone make the action pure speech. All human action has some expressive content, but that doesn't mean all human action receives meaningful or equal First Amendment protection. The expressive content of the schools' action in this case may be enough to prevent the government from mandating that the schools not discriminate against military recruiters when hiring faculty or admitting students (although the schools would stand on weaker grounds with respect to a former recruiter), but the Boy Scout analogy obviously goes no further than that.

The schools' position is at least as absurd and disingenuous in practice as it is in legal theory. Different recruiting employers have many mutually inconsistent policies, and different recruiters make many mutually inconsistent statements to interviewees. Do the complaining law schools endorse all of those mutually inconsistent policies and statements? The schools certainly don't expressly disavow many such statements, policies and practices. Some law firm recruiters lean heavily and actively Democratic (with all the political views and policies that entails) and some lean Republican. Some law firms electronically monitor and record their associates' telephone calls and some consider such monitoring to be outrageous. Some law firms routinely misrepresent such things as advancement and partnership prospects to their associates, and some do not. A member of the Goldman Sachs executive committee once told me that he regarded all major New York law firms as essentially Ponzi schemes based on systematic lying by the firms to their associates. Does Harvard Law School post signs at the recruiting desk along the lines of: "Warning, Harvard Law School has determined that most law firm summer internship programs - as well as statements made by partners and other firm representatives to summer interns - are deliberately designed to give a much rosier view of associate life and prospects than is in fact the case." I've never heard of one, but there really does seem to be evidence that law students are misled in this respect.

The schools' position would lead to a complete disruption of federal funding of universities. If the law schools won, fundamentalist universities would be able to obtain federal scientific research grants without engaging in scientific research simply by arguing that the university is an "expressive association" (as the law schools do here) and the requirement that the federal money be spent on traditional science and not creation science is an "unconstitutional condition?" How long would the feds stay in the scientific grant business if that holding came down? Moreover, the law schools' assertion that a recruiter's policy and statements are somehow "endorsed" or "adopted" by the school would naturally lead to the conclusion that the schools should be legally liable for frauds and other infractions contained in recruiters' comments and policies. Is that what the schools desire? Maybe they should have run this one by their lawyers. Fortunately, the schools seem to have a hostile Supreme Court to save them from themselves.

Absurd as the law schools' argument is, it was bought by two judges sitting on a panel of the Third Circuit, which enjoined enforcement of the Solomon Amendment. The majority opinion is virtually a tour of First Amendment intellectual dishonesty. But there may be something else at work here. It goes without saying that the left despises the Supreme Court's Boy Scout decision in the same visceral and contemptuous manner in which it despises Bush v. Gore. A rogue panel of the Ninth Circuit seized on a deliberate and willful misreading of Bush v. Gore as grounds for enjoining the California recall of then Governor Gray Davis, a decision later overturned by the en banc Ninth Circuit. The decision of the three-judge Ninth Circuit panel leaves one with an the impression of an author (and a court) eager to "stick" the Supreme Court and conservatives with what the panel completely understands to be a misreading of the odious Bush v. Gore. Similarly, the Third Circuit majority opinion leaves one with the impression of an author (and a court) eager to "stick" the Court and conservatives with the Court's decision upholding the Boy Scouts' rights. The rapid and unanimous en banc rejection by the Ninth Circuit of its three-judge panel decision, and the likely unanimous Supreme Court rejection of the Third Circuit decision enjoining the Solomon Amendment, provide some insight into how unpersuasive and ridiculous lower courts make themselves appear when thye descend to such contemptuous "stick-it-to-them" misreadings of Supreme Court precedent.

My guess is that the Supreme Court opinion overturning the Third Circuit decision will not be at all kind to that decision or its authors. The Supreme Court has its own genteel ways of expressing its contempt for such lower court frolics.

And when that reversal comes down, just how many universities will choose to "express" themselves on what they have told the Court they consider a most important issue by actually refusing the federal money? My guess is that we will see exactly none take that route. Already, as noted by an item linked abouve, Harvard - by far the wealthiest school in the nation and perfectly able to give up federal funding - has grudgingly admitted military recruiters. The schools with straight faces tell the Supreme Court that the issue is centrally important to them as a matter of high principle - but only so long as it doesn't cost them anything. The Hypocrisy Tsunami.