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March 15, 2006

More Solomon Amendment

Via David Bernstein, this extremely amusing NYT analysis of why the nation's 'best and brightest' legal minds lost the Solomon Amendment case:

...if the result was not embarrassing enough, there was also the tone of the court's unanimous decision, written by Chief Justice John G. Roberts Jr. In patient cadences, the kind you use in addressing a slightly dull child, the chief justice explained that law students would not assume that their schools supported the military's "don't ask, don't tell" policy if they saw military recruiters on campus.

"High school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so," he wrote. "Surely students have not lost that ability by the time they get to law school."

Far be it from the HVES to say we toad you so, but apparently Ted Kennedy was right to warn us about the dangers of a Roberts Court. Our new Chief Justice appears to have eschewed the oppression of hapless arroyo amphibians for far easier pickings: Juris Doctoris IvyLeaguensia.

And to think we said nothing when they came for Angie Hedgepeth and her french fry. Now the Roberts Court wants to quarter troops in your home and steal your cornflakes too.

We must thank the Times, however, for gifting us with this morning's coffee-snorter, the Clueless Law Professor Theory:

Peter H. Schuck, a Yale law professor who thought the law schools' legal position was misguided, said that many professors were so indignant about the military's treatment of gay men and women and so scornful of the military itself that their judgment became clouded.

"There is often a feeling that if something is morally wrong it must be legally wrong and that clever arguments can bring those two things into alignment," Professor Schuck said.

The elite law schools have for decades been overwhelmingly liberal, Professor Schuck said, and that may have blinded professors to problems with their arguments. Only one law school brief, organized by members of the faculty of George Mason University School of Law, supported the military.

"If you put together a Vietnam legacy, a gay rights ideology, the idea that courts can solve all problems and the legal academy's echo chamber, you get this result, " said Joseph Zengerle, an adjunct professor at George Mason who helped write the brief.

That Other VC's Bernstein comments:

The most bizarre aspect of the whole litigation, in my opinion, was that the Third Circuit opinion ruling for the law professors failed to discuss or even cite the case most obviously on point, Grove City College v. Bell, which held in rather conclusory language that Congress has rather wide authority to encourage universities via threats of withholding funding to follow federal policy, even if direct legislation on such issues would violate the schools' First Amendment rights. It was as if the Third Circuit majority decided that conditional federal funding was okay when it operated in the interest of "civil rights," as in Grove City, but not when it was not in the interest of "civil rights" as in the FAIR litigation. In fact, however, as I've noted before, the Solomon Amendment was modeled directly after Title IX, the antidiscrimination provision at issue in Grove City. Instead of being forced to adhere to rules designed to ban discrimination against women, Solomon required law schools to adhere to rules designed to ban discrimination against military recruiters. No amount outrage over what is seen as Congress' moral obtuseness in analogizing discrimination against women to discrimination against military recruiters could obscure the fact that if the federal government could threaten Grove City College's funding for refusing to follow federal antidiscrimination dictates, it could do the same to Yale and Harvard.

More on that in this excellent piece by Mr. Bernstein, which ends with the prescient warning:

With the Solomon Amendment, liberal activists are learning the old lesson that whatever power you give the government to do things for you carries with it the equivalent power to do things to you.


Posted by Cassandra at March 15, 2006 07:48 AM


You are having way too much fun with this, young lady.

Posted by: spd rdr [TypeKey Profile Page] at March 15, 2006 11:01 AM

Schadenfreude is an ugly thing, isn't it?

You created a monster, mr rdr.

Posted by: Cassandra [TypeKey Profile Page] at March 15, 2006 11:23 AM

Reminds me of the democrat who couldn't believe Bush won the election because she didn't know one person who voted for him!

It must be nice to exist in a delusional state totally oblivious to reality. It is truly comical that these people in law school find it impossible to believe that laws actually apply to them, too!

Ludicrous and hysterical!

Posted by: David [TypeKey Profile Page] at March 15, 2006 11:53 AM

Believe me, I am uncomfortably aware that I'm engaging in shameless reich-wing blogger triumphalism of the worst sort, but as a Marine wife and Navy junior, I just can't help myself.

They say admitting you have a problem is the first step on the road to recovery.

Posted by: Cassandra [TypeKey Profile Page] at March 15, 2006 11:57 AM

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