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Jewish World Review March 8, 2006 / 8 Adar 5766

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Professors of Pretense: Justice John Roberts gives elites a needed lesson in constitutional law | The institutional vanity and intellectual slovenliness of America's campus-based intelligentsia have made academia more peripheral to civic life than at any time since the 19th century. On Monday its place at the periphery was underscored as the Supreme Court unanimously gave short shrift to some law professors who insisted that their First Amendment rights to free speech and association were violated by the law requiring that military recruiters be allowed to speak to the professors' students if the professors' schools receive federal money.

Many schools that disapprove of the congressionally mandated "don't ask, don't tell" policy that prevents openly gay people from serving in the military have barred military recruiters from the same access to students that is granted to other employers. This provoked Congress to pass a law denying federal funds — institutions of higher education receive about $35 billion annually — to any school discriminating in that way against the military. The law exempts any institution with "a longstanding policy of pacifism based on historical religious affiliation."

Thirty-six law schools and faculties challenged the constitutionality of the law on the grounds that "forced hosting" of military recruiters constitutes a "crisis of conscience" over compelled speech. They said they are compelled to communicate the false message that they support the "don't ask, don't tell" policy, and their hosting also subsidizes the military's expression of its view that openly gay persons are not suited for service.

(Do those professors object to public financing of political campaigns, which compels taxpayers to subsidize political speech they oppose? Don't ask.) Monday's opinion was written by Chief Justice John Roberts, who, during last December's oral argument, blandly said of the schools' desire to discriminate against the military, "You are perfectly free to do that, if you don't take the money." On Monday Roberts's shredding of the law schools' arguments included a tartness that betrayed impatience with law professors who cannot understand pertinent distinctions.

The court has held that "judicial deference . . . is at its apogee" when Congress legislates under its enumerated power to raise and support armies, so Congress could have mandated access for military recruiters rather than doing so "indirectly" with incentives — conditioning spending on recruiters' access. And the law at issue, Roberts said, "regulates conduct, not speech. It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say."


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Suppose, Roberts wrote, an individual announced that he intended to express disapproval of the Internal Revenue Service by refusing to pay taxes. That would not mean that the tax code violates the First Amendment. The court has held that freedom of speech prohibits government from telling people what they must say — that schoolchildren must salute the flag or that New Hampshire motorists must display the state motto, "Live Free or Die," on their license plates. But those cases concerned government dictating the content of speech, which the law concerning recruiters' access to law school students does not.

The court has held that state law cannot compel a parade — which is a form of expression, not mere motion — to include a group whose message the parade's organizer does not want to express. Similarly, the court has held that compelling the Boy Scouts, an "expressive association," to accept a homosexual scoutmaster would "significantly affect" the Scouts' right of expression. But the law schools are in no way inhibited from — or bashful about — proclaiming their message of disapproval about "don't ask, don't tell."

"Accommodating the military's message," Roberts wrote, "does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive."

Recruiters are obviously not components of law schools; they are outsiders on brief visits for a limited purpose. "Nothing about recruiting," Roberts wrote, "suggests that law schools agree with any speech by recruiters." Besides, "We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy."

Then, Roberts's tartness: "Surely students have not lost that ability by the time they get to law school."

The law schools and faculties earned that sip of the chief justice's vinegar by bringing this case to court. The professors deserved — no, let us just say they needed — better legal advice than they were able to give themselves.

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