Rumsfeld v. Forum for Academic and Institutional Rights

In Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), decided on March 6, 2006, the U.S. Supreme Court held that Congress could require law schools (and their universities) to provide equal access to military recruiters as a condition for receiving federal funds. There is a lot of commentary out there on this subject, including on the Volokh Conspiracy and PrawfsBlawg.

And of course there's George F. Will. Will writes cogent columns, and he--like many in journalism and the general public at large--seems to have fallen prey to the temptation to bash people he does not like or with whom he disagrees. He does this with more panache than most, but he still does it. Take, for example, the very first two sentences of his March 8, 2006 column on the FAIR decision:

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.

Ouch. To be fair, that is good writing. It grabs you and makes you want to read more. On the other hand, it is unfair and untrue, and is itself an exercise in "vanity and intellectual slovinliness" by Will himself.

What do I mean? Perhaps I should first say that I do not really disagree with Will's view of the outcome of the case. On the whole, I think the decision was not incorrect. It is not my area of legal scholarship, and there are certainly constitutional arguments to be made against it, but based on current jurisprudence the outcome is not a surprise. However, it certainly would not be inappropriate for law schools to send notices to students telling students the school does not agree with the military's position on the matter. That's an exercise of free speech, is it not? But if the school wants the federal money in question, then the military should get access. Schools with deep consciences and deep pockets are of course free to object.

No, what bothers me about Will's statement is that it is shallow--it lacks depth and perception. "The institutional vanity and intellectual slovenliness of America's campus-based intelligentsia"? Come on. That shows a complete lack of understanding of what law professors do. Which I suppose is not a complete surprise. For better or worse, the profession of law teaching has been transformed in the past 50 years or so from one based on just the teaching of the law to one that does both that and theorizing and creatively thinking about the law at a much, much higher level than the ordinary citizen or lawyer does. To suggest that such actitivies are "peripheral" is wrong. To characterize such activities as "intellectual slovinliness" is nothing short of a cheap shot. A popular cheap shot, to be sure, but a cheap shot nonetheless.

There is so much material here that I can I discuss that clearly I am going to have to divide my thoughts on the matter into several posts. So stay tuned. My basic thesis will be that law professors who pursue a cause of action that involves (a) honest conviction, (b) creative thinking about the law, (c) concern about public policy, and (d) no direct monetary remuneration, cannot rightfully be accused of vanity or intellectual slovinliness.

Of course, rightful commentary does not always sell newspapers. But at least the First Amendment still protects my right to object to wrongful commentary, if only from the periphery of my ivory tower office.