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Do Law Schools Really Think Their Students Don't Believe Them That Credulous?

The oral arguments in FAIR v. Rumsfeld (RealMedia) make entertaining listening. The case has that make-believe feel one often gets in such civil rights cases, where everyone knows that the real argument is about the legitimacy of dont ask/don't tell, and yet we're tinkering about with issues that exist only in a hypothetical imagination, belief in which is necessary to get within the case law. Todd Zywicki has already excerpted one bit from the New York Times that neatly drifts into magical thinking:

The lawyer adjusted his focus. The law schools have their own message, "that they believe it is immoral to abet discrimination," he said.

This time, Justice Sandra Day O'Connor took issue. "But they can say that to every student who enters the room," she said.

"And when they do it, your honor, the answer of the students is, we don't believe you," Mr. Rosenkranz said.

"The reason they don't believe you is because you're willing to take the money," Chief Justice Roberts interjected. "What you're saying is this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."

(emphasis added) It's nice to see that Chief Justice Roberts has such a humorous touch, and he's got a point. Like the old joke about Shaw and the lady's virtue, the FAIR case shows what passes for principle in higher education.

Nevertheless, I'm a bit annoyed at the law school coalition for ascribing such phenomenal ignorance and credulity to their students in front of the highest court in the land. Key to the Chief Justice's rejoinder is an acceptance of the dream that students don't believe law schools are opposed to the Amendment or find compliance immoral. While this blog has been running, I've received numerous and lengthy emails from the administration explaining the position on the Amendment. When I logged on to register for employer interviews each year, a special notice was attached to the military recruiters, one year in red lettering. They haven't forced students who interview with JAG to wear a scarlet B yet, but it doesn't seem out of the question.[1] If there is a law student at Columbia that believes that the school supports the Amendment, or that it is doing anything but going along because it's being strongarmed. . . . well, let's just say I'd wonder whether that was an honest belief, or mere posturing because it makes one's case before the Court seem stronger.

Justice O'Connor, if it sets your mind at rest, we got the memo.

(UPDATE: I think my use of "credulous" in the title is a bit confusing and ambiguous. I meant to wonder whether law schools thought students would actually buy that they feel we don't believe them. But as the pronoun confusion in the last sentence indicates, the thought there is a bit twisted. On reflection, the title "Do Law Schools Really Think Their Students Don't Believe Them" would be better.)

[1]: Actually, what letter would the school choose? You wouldn't want to use H (for homophobe) for obvious reasons. I figure B for bigot, but I'm sure someone will come up with something more ingenious.


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It doesn't demonstrate that higher education has illusory principles. That's a straw man argument. It demonstrates how powerful a tool federal funding can be. Without federal funding, many universities would not be able to attract the best professors and researchers. $100M is nothing to scoff at, and the framers of the Solomon Amendment knew that. Standing on principle is one thing. Standing on it to the point where an entire university - most of it unrelated and untouched by military recruiting - is damaged by the lack of funds is something altogether different.
Adam: I didn't say that the law schools principles are illusory, any more than G. B. Shaw said the virtue of the lady was illusory. What I said was that the principle had a value, and we had now determined what the value was. Certainly $100 million isn't pocket change, but then if one considers this behavior immoral, it's certainly not beyond the pale to wonder why universities like Yale or Harvard don't give back the King's shilling. New Haven is hardly going to become a ghost town without it.

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