13 Mar 2006

Un-Intellectually Diverse and Incompetent as Well

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There has been an increasing volume of criticism in recent years of the strange double-standard of contemporary American universities in which diversity consisting of the presence on campus of representatives of recognized victim groups is esteemed as of essential educational value, but diversity of faculty political opinion is conspicuous by its absence, and not valued at all.

Adam Liptak, in yesterday’s Times, has a great deal of fun noting the astonishing unanimity of law professors from prestigious schools on the right of American universities receiving money from the federal government to exclude military recruiters. Last Monday’s Supreme Court decision in Rumsfeld v. Forum for Academic and Institutional Rights produced a highly embarassing rebuke.

Hundreds of law professors at the nation’s finest law schools, representing the all-but-unanimous views of the legal academy, filed a series of briefs last year on one side of a Supreme Court case. On Web sites and in lecture halls, the professors spoke out about the case, which they called a crucial test for gay rights and free speech.

Marshalling their collective intellectual firepower and moral outrage, the professors, from Harvard, Yale and elsewhere, made it sound obvious: Universities should be allowed, they said, to take government money but oppose the military’s policies on homosexuality by restricting military recruiting on campus.

On Monday, the best minds in the legal business struck out. The vote was 8-to-0 against them — a shutout, a rout, a humiliation. It is one thing for liberal academics to fail to persuade conservative justices like Antonin Scalia and Clarence Thomas. But the law professors did not produce so much as a sympathetic word from liberal justices like Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. (The newest justice, Samuel A. Alito Jr., did not participate.)And if the result was not embarrassing enough, there was also the tone of the court’s unanimous decision, written by Chief Justice John G. Roberts Jr. In patient cadences, the kind you use in addressing a slightly dull child, the chief justice explained that law students would not assume that their schools supported the military’s “don’t ask, don’t tell” policy if they saw military recruiters on campus.

So traumatic was the unanimous SCOTUS decision that, already, a variety of theories accounting for the discrepancy of opinion have been articulated:

There is the reactionary Supreme Court hypothesis. William N. Eskridge Jr., a Yale law professor who helped shape the losing side’s arguments, said the defeat demonstrates the “ridiculously obvious” point that the Supreme Court is “a justificatory instrument” for military policy.

Then there is the clueless law professor theory.

Peter H. Schuck, a Yale law professor who thought the law schools’ legal position was misguided, said that many professors were so indignant about the military’s treatment of gay men and women and so scornful of the military itself that their judgment became clouded.

“There is often a feeling that if something is morally wrong it must be legally wrong and that clever arguments can bring those two things into alignment,” Professor Schuck said.

The elite law schools have for decades been overwhelmingly liberal, Professor Schuck said, and that may have blinded professors to problems with their arguments. Only one law school brief, organized by members of the faculty of George Mason University School of Law, supported the military.

“If you put together a Vietnam legacy, a gay rights ideology, the idea that courts can solve all problems and the legal academy’s echo chamber, you get this result, ” said Joseph Zengerle, an adjunct professor at George Mason who helped write the brief.

We’ll vote for the latter. Uniformity of opinion allowed to thrive too long insulated from challenge inevitably breeds subjectivity and self indulgence.

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