Score one for common sense

Posted: Mar 13, 2006 12:01 AM

It shouldn't have come as a surprise when the U.S. Supreme Court came down firmly on the government's side in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) - not after the justices had given short shrift to the other side during the oral arguments. That was the side of some of the country's most prestigious, ivy-covered law schools.

The result of this difference of legal opinion was summed up masterfully by the headline over The Wall Street Journal's editorial on the subject: "Army 8, Yale 0."

(What about the ninth member of the court? The court's newest member, The Hon. Samuel Alito, got to the game too late to participate in the court's deliberations.)

The scrimmage line had formed some years back when Congress passed the Solomon Amendment cutting off federal funds for universities that refused to let the military recruit at their law schools. The law schools demurred, claiming any such penalty was unconstitutional. Their theory of the case, not to put too fine a point on it, was that the universities should be able to go on receiving U.S. dollars even if their law schools barred the U.S. military from their hallowed precincts. That's not just creative thinking, it's real nerve.

But the Supremes weren't impressed. At least not in a good way. By the time he was through handing down the court's unanimous opinion, its still new chief justice - John Roberts - had found more holes in the law schools' case than in the Houston Texans' line.

And he'd opened up one or two of his own: Not only could Congress put conditions on its federal aid, he wrote on behalf of the court, but it could require that universities give the military access to their campuses whether they received federal aid or not.

Because, as the chief justice noted, "The Constitution grants Congress the power 'to provide for the common Defence,' '(t)o raise and support Armies,' and '(t)o provide and maintain a Navy.'" Yep, there's still nothing like reading the Constitution to determine what it means.

In their own defense, as opposed to the country's, the law schools could offer only a tortured reading of the First Amendment: Allowing military recruitment on campus, they argued, would violate their freedom of expression. Since it would imply that the schools were endorsing the military's policies, specifically the Don't Ask, Don't Tell rule that puts a special burden on homosexuals in the military.

The law schools aren't happy about that rule and, truth to tell, I'm not crazy about it, either. But I'm not about to boycott the armed forces of the United States on account of that policy. Because I owe them too much. Like loyalty and gratitude and respect. And a decent welcome when they drop by to make their case. Don't all Americans owe the military that much, even those who teach law?

It didn't take the chief justice long to shoot down the law schools' argument that they were being forced to agree with the military's policy. After all, the court requires high schools to allow equal access for religious clubs without any danger of making those schools endorse religion. "We have held," wrote the chief justice, "that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so . . . . Surely students have not lost that ability by the time they get to law school."

Well, maybe they have in the higher reaches of academe. Or so these distinguished law schools were reduced to arguing. To borrow an observation from George Orwell that never seems to lose its relevance: "One has to belong to the intelligentsia to believe things like that: No ordinary man could be such a fool."

Naturally the law schools aren't happy with how this fight they picked came out. To quote Chai Feldblum, a professor of law at Georgetown, this decision should serve as a "call to arms" to the schools. One trusts she was speaking only metaphorically. If not, there's still a bright side: Professor Feldblum could yet come to see the utility of military training for lawyers.

The court's decision in Rumsfeld may have lacked the surprise factor that makes for Big News, but it offers real hope. For you'd think at least one of the justices would have fallen for the law schools' involved argument that to deny them federal aid merely because they wanted to snub the military would be an unconstitutional infringement on their freedom of speech, their need for diversity on campus, their sacred conscience and general grabbiness, etc. But not even one justice swallowed the law schools' tangled line.

Whatever this decision may say about the Constitution, it says something most assuring about the court itself. Can the fog in Washington be lifting? Have reports of the death of common sense in the law been greatly exaggerated? Keep the good thought.

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