Law school speech vs. law school conduct

[Lynne Henderson]

Well, I guess one distinction could be drawn along the lines of *Keyes v. Denver. . .*:  eg, we caught you intentionally discriminating here, so you're probably good for it in other departments.  That seems distinguishable from the SA case.  But also there's little incentive I should think to litigate the condition under Title VI--not so with the SA.
 And even if *Korematsu* has never been overruled, I think it is hard to argue that national defense requires intentional race and gender discrimination now.  Or am I missing something in your point?
Lynne
-----Original Message-----
From: Sanford Levinson <SLevinson at law.utexas.edu>
Sent: Dec 7, 2005 10:20 AM
To: Lynne Henderson <hendersl at ix.netcom.com>, "Volokh,Eugene" <VOLOKH at law.ucla.edu>, conlawprof at lists.ucla.edu
Subject: RE: Law school speech vs. law school conduct

The obvious problem is the interpretation of Title VI, much endorsed by
most political liberals, that denies federal funds to the entire
university because of discrimination by a single program.  I don't see
how the Solomon Amendment can be easily distinguished, in this regard,
from the capacious interpretation of Title VI unless one simply says
that eradicating racial or gender discrimination is a more "fundamental
interest" than national defense during a time of war, which seems a hard
argument to make as a practical matter (see, e.g., Korematsu).

sandy 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Lynne Henderson
Sent: Wednesday, December 07, 2005 12:44 PM
To: Volokh,Eugene; conlawprof at lists.ucla.edu
Subject: Re: Law school speech vs. law school conduct

Just out of curiosity, how is denying *all* federal funding to an entire
university because of the actions and speech of a single department not
"coercive" under *Dole?* Lynne

Prof. Lynne Henderson


-----Original Message-----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
Sent: Dec 7, 2005 9:09 AM
To: conlawprof at lists.ucla.edu
Subject: Law school speech vs. law school conduct

	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

> 
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