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Monday, August 15, 2005
Justice as FAIRness
Allow me to spotlight two interesting new papers on the Solomon Amendment litigation (the litigation is known as the FAIR case, for Forum for Academic and Institutional Rights -- hence the title).
First, Diane Mazur of the University of Florida has posted a paper entitled "A Blueprint for Law School Engagement with the Military." The paper questions whether the law school plaintiffs' response to Don't Ask Don't Tell, which consists largely of shunning the presence of the military on campus, is the right approach, and instead counsels a more constructive and meaningful engagement with the military and the constitutional issues that surround us. This engagement is especially important, and especially difficult, in an environment in which the principle of civilian control of the military demands that civic institutions (including law schools) pay proper attention to the military, yet in which the gap between the civilian and military worlds has been increasing since our move to a volunteer military. Prof. Mazur links these concerns to the judicial policy of deference to the military, which she critiques at length here and elsewhere. While I may not agree with every aspect of her paper, I think her argument for engagement with the military over reflexive disregard for the military is an important one. The paper can be found here.
Prof. Andrew Morriss of the Case Western Reserve law school has also posted an interesting paper, entitled "The Market for Legal Education & Freedom of Association: Why the 'Solomon Amendment' is Constitutional and Law Schools Aren't Expressive Associations." He makes three central arguments. In his words: "This Article argues that the Court should reverse and uphold the statute because the lower court failed to consider the cartelized nature of legal education and so incorrectly assumed that law schools are "expressive associations" entitled to assert First Amendment claims, failed to give proper deference to Congress's exercise of its Article I power to raise and support armies, and over-valued law faculties' interest in career services offices." Again, I think this is a very interesting paper. It can be found here.
Let me recommend both of these papers to those who are interested in the Solomon Amendment litigation, which of course is due to reach the Supreme Court this Term. I suppose it is just barely fair to point out that my interest in these issues is both scholarly and a little bit proprietary, since my recently published paper, Grutter's First Amendment, contains what I think is the first serious post-Third Circuit discussion of the case currently in print. See 46 Boston College Law Review 461, 516-33 (2005), available on Westlaw or here.
Posted by Paul Horwitz on August 15, 2005 at 01:24 PM in Article Spotlight, First Amendment, Law and Politics, Paul Horwitz | Permalink
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Comments
Interesting article, re. the Morriss piece on Law Schools as Not Expressive Associations. I haven't read the whole thing, just the introduction.
I like the phrase "cartelized nature of legal education," but I wonder what it's got to do with anything. Also, a law school is not like a non-law school. It is a professional school - meaning people come out of it (in theory) able to carry out a profession. And yet, we must submit to BAR/BRI's loving embrace, and pass the bar, in order to practice. Compare this to a doctor's boards, and contrast it to a Graduate School math department, from which a PhD-obtainer can go and get a job the next day, without taking a professional exam.
Query next whether this is the correct mode of analysis, post Dale. Are the Boy Scouts cartelized? Does it matter?
Back to what law schools are: the administration governs _on behalf of_ the professors, who _are_ the law school. The Trustees oversee, the President of the University earmarks funds, and the professors govern themselves. If a policy is made within the law school, it originates with and has power because of the law professors. Their mission is to educate, which is an intensely expressive activity implicating their own scholarly and personal views. Some of the faculty plaintiffs argue that their right to freely express their views of the law are infringed by the government's leveraging of the University as a whole in order to get better-than-equal treatment from the career services office, which as noted is an _arm and agent of_ the professors themselves.
In my view, "equal" treatment at the plaintiff law schools would mean "equal to other discriminating employers" - that is, they can recruit, but they can't have the privileged forum of on-campus recruiting along with the other employers. They must solicit by mail, they must make arrangements by email and by announcement to meet with students, and they must not force open the doors.
But JAG and DOD and Congress want "better than equal treatment" - superior treatment - they want JAG to be able to recruit on a par with employers who can and will offer non-discriminatory post-graduation employment, which DOD cannot and will not do, until its policy about denying employment to openly gay and lesbian personnel is overturned or withdrawn.
It's all about special treatment. These law professors want to be treated as fairly as the Boy Scouts were (in the appallingly bad Dale decision), and the DOD wants to be able to get special favors because Congress can be manipulated into giving the military outrageous power over private civil institutions. Which is the master?
Posted by: Eh Nonymous | Aug 16, 2005 1:59:34 PM
Special treatment???? Special favors??? The Solomon Amendment merely says that certain Federal funds can be denied to a school if that school denies access to certain Federal organizations (namely, the military). The aggrieved law professors can still make known their opposition to the military's recruitment of their students. If this cause is so important, then the schools and professors can simply act according to their principles & refuse the money; all the while adjusting their budgets to reflect such nobility. Why, I'm getting goosebumps, just imagining all those professors willingly taking a pay cut just to show DOD that they (the professors) mean what they say.
As a side note: I wonder how many of these professors were filing briefs in support of Grove City College back in the early 80's.
Posted by: Patrick | Aug 16, 2005 7:17:19 PM
"Eh Nonymous" asks whether the Boy Scouts are cartelized. Nope. Does it matter that law schools are? Yes. Why? Well, read the paper.
The important point to which I want to respond is Mr./Ms. Nonymous's claim that law schools "are the professors." Why? The professors don't own any of the law school's assets, can't hire new faculty without the permission of the board of trustees, and can't tell the career services office what to do unless the board of trustees says they can. That's a key point - according to the plaintiffs in the FAIR case, law schools backed down in the face of the Solomon Amendment when their universities told them to do so. The point of my paper is that law faculties aren't the law schools in either a legal or moral sense. Again, all this is set forth in detail in the paper.
Posted by: Andrew Morriss | Aug 17, 2005 7:45:58 AM
Interesting piece on a broader issue of military-civilian gaps a few days ago in the LA Times, by UVa lawprof Rosa Brooks:
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Uncle Sam to the liberals: I need you!
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Getting progressives into uniform can close the military-civilian culture gap.
http://www.latimes.com/news/printedition/opinion/la-oe-brooks13aug13,1,4460236.story
Posted by: a non | Aug 17, 2005 10:18:24 AM
Prof. Morriss's discussion of the claim that law schools are their professors raises interesting and pertinent points for some of the Solomon Amendment litigation. (Self-serving-itude disclosure: I discuss this issue, somewhat tentatively, in my Grutter's First Amendment paper.) The FAIR litigation itself, as well the other Solomon suits that have been brought, feature a variety of plaintiffs: individual law professors, collectives of law faculties claiming some special status as the voting majority of the faculty, law schools (I think -- I'm working from memory here), FAIR itself, and some students and student groups. (Curiously, the universities themselves are not among them, if I recall correctly.) This ought to make a difference depending on the kinds of claims that are being brought. To the extent some of the claims rely specifically on institutional arguments -- ie., arguments for Dale deference as expressive associations, or for Grutter deference as higher educational institutions -- it seems to me that some of these plaintiffs lack standing to make these arguments. Because some law schools were named, directly or indirectly through FAIR, as plaintiffs in the case currently coming before the Supreme Court, the Third Circuit assumed standing in general; by contrast, other courts found at least some problems with standing for some student groups. The district court in Connecticut, dealing with the suit brought by professors at Yale Law School, found standing because the plaintiff professors there constituted a majority of the voting faculty and were treated for governance purposes as standing in for the law school itself. It is also worth noting that not all the claims in the Solomon litigation were institutional in nature. But it seems to me that if the Solomon litigation is to turn on institutional arguments -- or if other plaintiffs are going to bring suit based on Dale or Grutter deference -- then courts ought to more carefully consider whether and when particular plaintiffs are entitled to bring suit. And it ought to inquire whether a law school itself, or even the broader university, is required to be the proper party to bring suit.
Posted by: Paul Horwitz | Aug 17, 2005 11:06:12 AM
I agree with Prof. Horwitz (and explain why in detail in the paper - everyone, quick, go download it lots of times to get my SSRN numbers up!). He is also correct on the plaintiffs in FAIR - no university is a member of FAIR or a plaintiff.
There is a separate issue with respect to stand-alone law schools (e.g. New York Law School, Brooklyn). I think they are still not the relevant entity - each is controlled by an entity with a board and that entity is the analogue to the university at, say, Case Western.
Posted by: Andrew Morriss | Aug 17, 2005 12:00:34 PM
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