March
8, 2006
Professors of Pretense
By George
Will
WASHINGTON
-- 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
ground 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' 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 directly 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."
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' 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.
©
2006, Washington Post Writers Group
