Blogging The Wisdom of Solomon
I've decided to live blog this event. This is a new adventure for me, so we will see how it goes.
Disclaimer: I can't spell.
Well we are finished. No one got into a fight, and the discussion was rather civil. Wonders never cease.
Questions
This should be interesting. Personally I am hoping someone will start yelling at one of the professors.
Last Question
Q: Is there anything that goes to far with the spending clause?
A: Eastman: The line seems to be whether it is a generally available benefit, access to parks, social security, whereas this is a targeted benefit.
Q: You contend that the government isn't discriminating on basis of sexual orientation but rather conduct. Suppose I have a space of public accomodation and don't want to allow people who are Christians or sing hymns.
A: Saying you are gay raises a presumption that you are engaging in homosexual conduct. You do not have to be gay to engage in homosexual conduct. All I was saying was that the Harvard brief, which claims that this is a statutory matter, is easily undone.
Story time with Eastman. Fourth Circuit twenty minutes into the argument. 91 year old judge asks the lawyer how saying you are gay raises a presumption of homosexuality. One of the other judges leans over and says, "That's what it means. Gay means homosexual." To which the other judge says, "What have they done to a perfectly good word?" Ha.
Q: Where is the limit? Can the government require you to quarter troops on campus? Can they make you not teach Hamdi?
A: Eastman pretty much just says no to that one. Then notes that if you can give money to educate citizens, you can then come recruit them. Telling them they cannot discuss something would clearly violate the constituion.
Q: Are you worried about what will happen to Title IX and other progressive opinions if FAIR wins?
A: For 50 years, the government has been recognized as having a compelling interest to fight discrimination. In this case, the law schools are fighting and the government is discriminating. Furthermore, on the nature of the underlying belief, here it is the law schools belief in non-discrimination that has been longstanding and explicit. For main stream universities, it would be hard to find one with a committment to racism. Incidences would be rare at least.
Response by Eastman: The real fight is not over compelling interest. It's whether this is narrowly tailored. If you win on that point, some of those progressive decisions might be open to a new review.
Closing remarks
Greenfield says that Rust was wrongly decided, but he thinks he can get around it. Rust is about compelling speech if the government is limiting speech involving the program that is being funded. This funding is not facilitating career service development. This funding goes to chemistry profs and med students and as a condition of that grant the law school has to speak on the behalf of the government. Greenfield is on a role.
Eastman responds. There is law on that as well. If you continue to discriminate in athletic departments on the basis of gender, all of the funding at your entire institution is at risk. That condition was upheld. Eastman now digresses, claiming there is no spending power to provide money to educational institutions except to persue a delegated end, like raising and supporting armies. Need well educated people to run an army, and that means funding in chemistry, engineering, and medicine might well foster a more competant military.
6:12
Eastman too is concerned by the strings that come with spending. The quote from Rehnquist has to be read in view of Rust v. Sullivan where it was said that it is permissible to condition funding on the requirment that one speak a certain message because it was focused on the institution not the speaker. The speaker can go anywhere he wants and disagree, as can the law school in this case.
It does seem difficult to see how FAIR will get around Rust. The Court would almost have to overrule that decision, though with recent changes I suppose anything is possible.
In South Dekota v. Dole the feds said no 21 to drink no money. It couldn't do that directly.
6:06
Now the rebuttal.
Greenfield asks whether the government can use money to coerce an affect it cannot command. He says that precedent states that they cannot. Eastman is scribbling furiously, and I suspect he is going to undo this argument. Greenfield now hyperbolizes, calling this the most aggressive attempt by Congress to infringe Constitutional rights. Now he is going to quote Rehnquist, "The government may not deny a benifit to a person on a basis that infringes his constitional right to freedom of speech even if he has no entitlement to that benefit." Parade of horribles to follow. Student loans, housing loans, medicare, social security, etc. can be conditioned on wearing a W button, openning your door to the military for recruiting your children, etc. He even called it a parade of horribles. An interesting argument. Let's see how Eastman handles it.
5:55
John Eastman is now on the spot. Takes up the Harvard professors brief first. Brief says Solomon doesnt apply because we actually are not harming the military, we are just holding them to the same standard everyone else is. The military can then say we are not discriminating against someone for being gay, but rather for homosexual activity whether the person is gay or straight. Professor Eastman feels that this argument won't go very far.
Eastman takes a different tack. Notes that we are divided on homosexuality and that for centuries we have disapproved of that type of conduct. He then notes that the professors at Harvard are not merely stating their opinion, but rather demanding that others adapt their viewpoint.
Contrasts to Bull Connor. No invidious discrimination. Rather than discriminating on the basis of status, merely judging on the basis of conduct. Wonders where the concern is for the students who disagree with Harvard's position. Notes that law schools cannot gain accredidation if they disagree with homosexuality.
Fair's Brief
Argues that no other employer enjoys this exemption. The military and government are different Eastman notes. The school recieves $300 million from the government.
Hypo: Suppose a law firm endows a chair at Harvard with the condition that debate is openned up on campus as to the morality of homosexuality. Harvard could certainly refuse. In the same way, Harvard is not being forced to do anything.
Is the money so large as to be coercive? Mentions South Dekota v. Dole. Court found there that the level of funding was not coercive in that case, and strongly suggested that no amount was coercive.
Dale
A number of local entities have moved to deprive the Boy Scouts access to venues as long as they adhere to their policy. Denying access to generally available benefits. This case involves a targeted benefit, part of the Spending Clause, which rests on enumerated powers like raising an army, the very purpose of this money.
5:43
Professor Greenfield is going first. Throws out two questions: Is the First Amendment an issue at all when the government forces schools to have recruiters and if so, can the government get around that violation by taking away government funds?
Raises a hypo: Statute that mandates that all educational institutions post a statement that gays and lesbians are second class citizens. Exactly what is happening here.
Not about access for the military. Rather, centers on a government mandate that law schools assist recruiters in delivering a message that is contrary to the educational goals of the educational institutions.
Two First Amendment claims
1. Compelled Speech
2. Freedom of Association
1. Law schools are forced to spread the military's message. It is as if the government is forcing us to stand in front of a speaker and deliver messages to our community that we do not agree with. Cites several cases. PG&E, Miami Herald, and a case involving Live Free or Die on the New Hampshire license plate.
2. Law Schools have a core belief that revolves around actively opposing discrimination. Cites Dale (Boyscouts) and Hurley (Irish parade that did not allow gays). In both cases, the organizations were allowed to chose with whom they would associate with. Here, forced to accept someone that not only holds a point of view that we disagree with, but one that we are being forced to dissiminate.
5:40
Ok, looks like we are about ready to begin. Both of our speakers have arrived. Susan Bernabucci and Dan Sullivan are introducing our speakers. We have Professor Kent Greenfield and John Eastman. Professor Greenfield is actually the founder of FAIR, and should have quite a grasp on the issue since his organization is suing the Defense Department.
Pre-event
So far so good. The room is almost full; a pretty good turnout for a rainy cold Boston afternoon. There are many new faces in the crowd. I think we have drawn a diverse group. I also note that the president of the campus ACLU and the president and vice-president of ACS are here. I am guessing that one of our debaters is late as I only see one guy in a suit. Blogs are strange. I can't imagine why anyone would want to read this...
Disclaimer: I can't spell.
Well we are finished. No one got into a fight, and the discussion was rather civil. Wonders never cease.
Questions
This should be interesting. Personally I am hoping someone will start yelling at one of the professors.
Last Question
Q: Is there anything that goes to far with the spending clause?
A: Eastman: The line seems to be whether it is a generally available benefit, access to parks, social security, whereas this is a targeted benefit.
Q: You contend that the government isn't discriminating on basis of sexual orientation but rather conduct. Suppose I have a space of public accomodation and don't want to allow people who are Christians or sing hymns.
A: Saying you are gay raises a presumption that you are engaging in homosexual conduct. You do not have to be gay to engage in homosexual conduct. All I was saying was that the Harvard brief, which claims that this is a statutory matter, is easily undone.
Story time with Eastman. Fourth Circuit twenty minutes into the argument. 91 year old judge asks the lawyer how saying you are gay raises a presumption of homosexuality. One of the other judges leans over and says, "That's what it means. Gay means homosexual." To which the other judge says, "What have they done to a perfectly good word?" Ha.
Q: Where is the limit? Can the government require you to quarter troops on campus? Can they make you not teach Hamdi?
A: Eastman pretty much just says no to that one. Then notes that if you can give money to educate citizens, you can then come recruit them. Telling them they cannot discuss something would clearly violate the constituion.
Q: Are you worried about what will happen to Title IX and other progressive opinions if FAIR wins?
A: For 50 years, the government has been recognized as having a compelling interest to fight discrimination. In this case, the law schools are fighting and the government is discriminating. Furthermore, on the nature of the underlying belief, here it is the law schools belief in non-discrimination that has been longstanding and explicit. For main stream universities, it would be hard to find one with a committment to racism. Incidences would be rare at least.
Response by Eastman: The real fight is not over compelling interest. It's whether this is narrowly tailored. If you win on that point, some of those progressive decisions might be open to a new review.
Closing remarks
Greenfield says that Rust was wrongly decided, but he thinks he can get around it. Rust is about compelling speech if the government is limiting speech involving the program that is being funded. This funding is not facilitating career service development. This funding goes to chemistry profs and med students and as a condition of that grant the law school has to speak on the behalf of the government. Greenfield is on a role.
Eastman responds. There is law on that as well. If you continue to discriminate in athletic departments on the basis of gender, all of the funding at your entire institution is at risk. That condition was upheld. Eastman now digresses, claiming there is no spending power to provide money to educational institutions except to persue a delegated end, like raising and supporting armies. Need well educated people to run an army, and that means funding in chemistry, engineering, and medicine might well foster a more competant military.
6:12
Eastman too is concerned by the strings that come with spending. The quote from Rehnquist has to be read in view of Rust v. Sullivan where it was said that it is permissible to condition funding on the requirment that one speak a certain message because it was focused on the institution not the speaker. The speaker can go anywhere he wants and disagree, as can the law school in this case.
It does seem difficult to see how FAIR will get around Rust. The Court would almost have to overrule that decision, though with recent changes I suppose anything is possible.
In South Dekota v. Dole the feds said no 21 to drink no money. It couldn't do that directly.
6:06
Now the rebuttal.
Greenfield asks whether the government can use money to coerce an affect it cannot command. He says that precedent states that they cannot. Eastman is scribbling furiously, and I suspect he is going to undo this argument. Greenfield now hyperbolizes, calling this the most aggressive attempt by Congress to infringe Constitutional rights. Now he is going to quote Rehnquist, "The government may not deny a benifit to a person on a basis that infringes his constitional right to freedom of speech even if he has no entitlement to that benefit." Parade of horribles to follow. Student loans, housing loans, medicare, social security, etc. can be conditioned on wearing a W button, openning your door to the military for recruiting your children, etc. He even called it a parade of horribles. An interesting argument. Let's see how Eastman handles it.
5:55
John Eastman is now on the spot. Takes up the Harvard professors brief first. Brief says Solomon doesnt apply because we actually are not harming the military, we are just holding them to the same standard everyone else is. The military can then say we are not discriminating against someone for being gay, but rather for homosexual activity whether the person is gay or straight. Professor Eastman feels that this argument won't go very far.
Eastman takes a different tack. Notes that we are divided on homosexuality and that for centuries we have disapproved of that type of conduct. He then notes that the professors at Harvard are not merely stating their opinion, but rather demanding that others adapt their viewpoint.
Contrasts to Bull Connor. No invidious discrimination. Rather than discriminating on the basis of status, merely judging on the basis of conduct. Wonders where the concern is for the students who disagree with Harvard's position. Notes that law schools cannot gain accredidation if they disagree with homosexuality.
Fair's Brief
Argues that no other employer enjoys this exemption. The military and government are different Eastman notes. The school recieves $300 million from the government.
Hypo: Suppose a law firm endows a chair at Harvard with the condition that debate is openned up on campus as to the morality of homosexuality. Harvard could certainly refuse. In the same way, Harvard is not being forced to do anything.
Is the money so large as to be coercive? Mentions South Dekota v. Dole. Court found there that the level of funding was not coercive in that case, and strongly suggested that no amount was coercive.
Dale
A number of local entities have moved to deprive the Boy Scouts access to venues as long as they adhere to their policy. Denying access to generally available benefits. This case involves a targeted benefit, part of the Spending Clause, which rests on enumerated powers like raising an army, the very purpose of this money.
5:43
Professor Greenfield is going first. Throws out two questions: Is the First Amendment an issue at all when the government forces schools to have recruiters and if so, can the government get around that violation by taking away government funds?
Raises a hypo: Statute that mandates that all educational institutions post a statement that gays and lesbians are second class citizens. Exactly what is happening here.
Not about access for the military. Rather, centers on a government mandate that law schools assist recruiters in delivering a message that is contrary to the educational goals of the educational institutions.
Two First Amendment claims
1. Compelled Speech
2. Freedom of Association
1. Law schools are forced to spread the military's message. It is as if the government is forcing us to stand in front of a speaker and deliver messages to our community that we do not agree with. Cites several cases. PG&E, Miami Herald, and a case involving Live Free or Die on the New Hampshire license plate.
2. Law Schools have a core belief that revolves around actively opposing discrimination. Cites Dale (Boyscouts) and Hurley (Irish parade that did not allow gays). In both cases, the organizations were allowed to chose with whom they would associate with. Here, forced to accept someone that not only holds a point of view that we disagree with, but one that we are being forced to dissiminate.
5:40
Ok, looks like we are about ready to begin. Both of our speakers have arrived. Susan Bernabucci and Dan Sullivan are introducing our speakers. We have Professor Kent Greenfield and John Eastman. Professor Greenfield is actually the founder of FAIR, and should have quite a grasp on the issue since his organization is suing the Defense Department.
Pre-event
So far so good. The room is almost full; a pretty good turnout for a rainy cold Boston afternoon. There are many new faces in the crowd. I think we have drawn a diverse group. I also note that the president of the campus ACLU and the president and vice-president of ACS are here. I am guessing that one of our debaters is late as I only see one guy in a suit. Blogs are strange. I can't imagine why anyone would want to read this...