Peter Schuck, author of the wonderful Diversity in America, takes on his Yale Law School colleagues over the issue of military recruiters. Schuck points out (as I have) the hyprocrisy of professors who want to assert expressive association rights for themselves, but not for, say, Bob Jones University (or the Boy Scouts), and also, correctly I think, concludes that whether or not to interview with the recruiters should be an individual, not an institutional, choice. (Via JD2B.com)
UPDATE: I don’t think it’s wrong, much less hypocritical, for an attorney or plaintiff to rely on a precedent he finds distasteful if it helps his case. However, as the quote from Professor Fiss in my piece I linked to suggests, at least some of the Yale professors are posing as principled defenders of expressive association, when what they really believe in is, to paraphrase Nat Hentoff, “freedom of association for me, and not for thee.” Others, like Jed Rubenfeld, apparently believe that the “freedom of expressive association holding in Boy Scouts opens up the possibility of a profound, thorough going attack on the nation’s anti-discrimination laws.” If so, it hardly seems either wise or moral, from their perspective, to argue for an expansion of Dale in the narrow interest of invalidating the Solomon Amendment. Is the cause of being allowed to discriminate against military recruiters really worth expanding freedom of association, when, according to Rubenfeld, that freedom is “a slogan of the people in favor of Jim Crow” ?
FURTHER UPDATE: Will Baude writes in to point out that Prof. Rubenfeld did not join his colleagues’ expressive association lawsuit, but filed a separate pro se brief arguing that the Solomon Amendment amounts to compelled speech. Kudos to Prof. Rubenfeld for intellectual consistency!
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