Law school speech vs. law school conduct

Volokh, Eugene VOLOKH at law.ucla.edu
Wed Dec 7 09:09:32 PST 2005


	Whether the relevant language -- "No funds . . . may be provided
. . . to an institution of higher education . . . if the . . .
institution . . . has a policy or practice . . . that either prohibits,
or in effect prevents . . . the Secretary of a military department or
Secretary of Homeland Security from gaining access to campuses, or
access to students (who are 17 years of age or older) on campuses, for
purposes of military recruiting in a manner that is at least equal in
quality and scope to the access to campuses and to students that is
provided to any other employer" -- bars schools from denouncing military
employers (unless they also denounce other employers) is an interesting
theoretical question.  I think the answer is "no," because condemnation
isn't denial of "access."  But one can certainly argue the contrary.

	Yet surely this is a perfect place for applying the principle
that ambiguous statutes should be interpreted to minimize, rather than
maximizing, potential constitutional problems.  The statute is focused
on demanding certain law school conduct -- access to campuses and
students for military recruiters -- as a condition of getting money.  It
would be a mistake, I think, to try to interpret the statute to ignore
this core concern of Congress.  The statute may also require law schools
to convey certain facts as part of the interview scheduling processes
("Here's a list of all our employers: Sullivan & Cromwell in Room 1,
ACLU in Room 2, Department of Defense in Room 3").  But there's little
reason to think that Congress even considered whether universities
should be barred from saying certain things, much less resolved this in
favor of restricting such speech.  What's more, requiring the school not
to speak using its own money as a condition of getting federal money
would raise considerably more serious First Amendment problems (see FCC
v. League of Women Voters) than requiring the school to provide physical
access, or even to convey factual information.

	In this situation, it makes perfect sense that the federal
government would interpret the statute to avoid this constitutional
problem, and to protect law school speech; and it seems to me quite
sensible for the Court to follow suit.

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Richard Dougherty
> Sent: Wednesday, December 07, 2005 6:37 AM
> To: dpinello at jjay.cuny.edu; Mark Tushnet
> Cc: ConLaw Prof
> Subject: Re: Organizing to Oppose Military Recruiters on Campus
> 
> 
> I think that Mark is right on this -- at least many Justices 
> were not buying Clement's argument, leading Scalia to 
> (rhetorically) ask him whether he was going to be a military 
> recruiter.  If my hearing was right, Kennedy thought it a 
> peculiar argument, and I think Stevens questioned how this 
> could be described as equal access, leading Scalia to comment 
> that it was sort of "separate but equal" treatment.
> 
> Richard Dougherty
> 
> ---------- Original Message ----------------------------------
> From: Mark Tushnet <tushnet at law.georgetown.edu>
> Date:  Wed, 07 Dec 2005 08:42:58 -0500
> 
> >I found the exchange interesting as well.  Of course, one might take 
> >the
> >position that a law school that organizes/assists protests against 
> >military recruiters isn't providing those recruiters with 
> access equal 
> >to that given other recruiters, against whom no protests are 
> organized 
> >(at least on the assumption that someone might want to protest the 
> >presence of some such recruiters).
> >
> >dpinello at jjay.cuny.edu wrote:
> >
> >>In today's New York Times, Linda Greenhouse reports that the Supreme
> >>Court is likely to uphold the Solomon Amendment.  However, 
> she relates 
> >>an interesting exchange from oral argument:
> >>
> >>"Asked by Justice Ruth Bader Ginsburg what a ... school 'could do
> >>concretely while the [military] recruiter is in the room,' 
> [Solicitor 
> >>General Paul D.] Clement replied that as long as the school granted 
> >>equal access, 'They could put signs on the bulletin board 
> next to the 
> >>door.  They could engage in speech.  They could help 
> organize student 
> >>protests.'"
> >>
> >>I plan to rely on this representation to the Supreme Court by the
> >>chief legal advocate for the Solomon Amendment.  As a member of my 
> >>school's Committee on Cultural Pluralism and Diversity, I will help 
> >>organize protests every time military recruiters set foot on campus.
> >>
> >>I urge all of you also to follow the Solicitor General's lead.
> >>
> >>Dan Pinello
> >>_______________________________________________
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