During oral arguments last week, the schools had many occasions to wince. Regarding the schools' theory that any conduct can be imbued with ``communicative force,'' Justice Antonin Scalia wondered whether the schools might also justify banning military recruiters during a war the faculty disapproved, because allowing the recruiters would be tantamount to the schools endorsing the war.
Or because the professors object to the military barring women from combat, or using land mines. The possibilities are as numerous as the professors' reasons for interposing their moral sensibilities between Congress and its constitutional power to ``raise and support armies.''
Furthermore, more than four other justices probably share Scalia's incredulity concerning this implication of the schools' argument: When an individual or institution gives as a reason for violating the law the fact that he or it wants to send a message, the violation acquires First Amendment protection. By such reasoning, a school barring blacks from campus could say its conduct is infused with an expressive purpose, hence shielded by the First Amendment.
The schools' selective sensitivity about that amendment is amusing, given that many universities use speech codes to enforce ``progressive'' sensibilities and compel students to pay fees that finance speakers and other expressive activities offensive to many of those compelled. Schools eager to ban military recruiters from a few hours of access to students who want to meet them have faculties that expose students to a one-sided bombardment of political views. Furthermore, universities are nurseries of ``progressives'' who support campaign regulations by which government supervises the quantity, content and timing of political speech, and who favor public financing of campaigns, which requires millions of taxpayers to fund political advocacy they oppose.
A striking alteration of America's political landscape since 1960 has been the marginalization -- actually, the self-marginalization -- of the professoriate. An inhospitable campus climate has prompted the growth of public policy think tanks and publications that sustain a conservative intelligentsia that helps elect and staff conservative administrations. And faculties have adopted increasingly adversarial stances toward an increasingly conservative public and its institutions.
Today's schools bristle with moral principles that they urge upon the -- so they think -- benighted society beyond their gates. But as Roberts blandly reminded the schools regarding their desire to bar military recruiters: ``You are perfectly free to do that, if you don't take the money.''