The Magazine

Solomonic Nonsense

Thirty-six leading law schools advise the Supreme Court that contemporary American legal education bears meaningful comparison to a Klan assembly.

Dec 19, 2005, Vol. 11, No. 14 • By DAVID TELL, FOR THE EDITORS
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LAST TUESDAY THE SUPREME COURT heard oral argument in Rumsfeld v. Forum for Academic and Institutional Rights. Rumsfeld, of course, is the secretary of defense. FAIR, as it's more commonly known, is a coalition of 36 law school and faculty groups, backed by friend-of-the-court briefs from organizations representing dozens of other law school and faculty groups, as well. At issue is the so-called Solomon Amendment, a congressional enactment under which American universities, in order to retain eligibility for most forms of federal funding, must provide military recruitment officers the same level of assistance and campus access that every other prospective employer routinely enjoys.

FAIR and its allies would very much prefer to withhold such cooperation from the Pentagon--concerned as they are about the underlying "immorality" of anti-homosexual bias in Defense Department hiring practices. But since no serious research university can nowadays survive without its federal aid, neither can any such university permit its law school to imperil that aid by obstructing the Judge Advocate General's corps when it shows up to conduct on-campus job interviews. So our law professors are made to stand down, and our law schools are made to look hypocritical, more interested in money than principle. Thus does the Solomon Amendment violate the legal academy's constitutional right--and professional obligation--to keep faith with, and properly propound, the true meaning of "equality, justice, and human dignity."

That, at least, was the argument FAIR attorney Joshua Rosenkranz spent half an hour attempting to defend before the Supreme Court last week. But something went horribly awry along the way, and by the time he was done, it seemed clear not just that FAIR's case was hopeless--Rosenkranz will be lucky to win even a single justice's vote--but that it was positively inane. The question arises: How could America's law schools have collectively embraced such an embarrassing farce?

Consider, for example, Rosenkranz's brief exchange with Justice Breyer about the possible limits of FAIR's asserted First Amendment privilege to resist, or even actively disobey, a statute its members find obnoxious. Breyer wanted to clarify whether this purported right was something uniquely possessed by tenured law professors who don't like "don't ask, don't tell"--or, instead, whether there was some neutral and generally applicable principle that Rosenkranz was identifying.

Breyer: And so, in fact, to be clear. You also think schools that are angry at the military because they are too favorable to gays in the military, they have the same right?

Rosenkranz: Absolutely, your honor.

Breyer: Also the same right, Bob Jones University, because they disapprove of social mixing of the races?

Rosenkranz: To answer the first hypothetical first, if that's a matter of conscience, absolutely.

Breyer: And there are a lot of people in the country, they may take this view, anyway, they may not believe in either affirmative action, they may not believe in diversity, they may even believe in racial segregation for all I know. I hope there're not too many, but there might, and those people all have the same right?

Rosenkranz: They have the same First Amendment right.

Murmuring arose throughout the Supreme Court chamber at this point--the way it often does when inexperienced attorneys allow themselves to be maneuvered, under questioning, into damaging "concessions" they don't actually intend.

Amazingly enough, though, Rosenkranz's embrace of the "racial segregation" analogy for his clients' treatment of Pentagon recruiters was not a mistake. He had already briefed the Court on precisely this point: "[T]here can be circumstances . . . where discrimination is so integral to an organization's identity, or to the message its members have gathered to communicate, that the right not to associate trumps even the government's weighty interest in opposing discrimination." Here, FAIR's counsel of record specifically suggested that Justice Breyer and his colleagues consult Invisible Empire of the Knights of the Ku Klux Klan v. Mayor of Thurmont--a 17-year-old Maryland district court case meant, one presumes, to stand for the proposition that law school professors can't be compelled to welcome uniformed servicemen into their ambit--just as the "Ku Klux Klan cannot be forced to admit Jews or African-Americans to its ranks or to its parades."

Think about that for a moment: 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.

Well, let us count the ways--a couple of them anyhow.