On Kagan and McChrystal

This morning I saw this article which says among other things: "The solution to a less politicized military can be accomplished via dilution, but for this to happen more political centrists and liberals would have to join the military. I doubt this will happen. According to tens of thousands of surveys conducted by University of Virginia social psychology professor Jonathan Haidt, politically conservative individuals disproportionately value both respect for authority and loyalty — values that perfectly align with military culture. By contrast, those on the political left disproportionally value caring for others and fairness. These are admirable preferences, but they don't immediately comport with a military career."

And, it reminds me of some things I've thought about before. One is that there is nothing wrong with making lawyers to change the world, notwithstanding for example the views of the critics of the law schools at Liberty and Regent. There are a few posts here about the start-up of the Liberty law school, a few years ago.

The Rumsfeld v. FAIR case always struck me as an outrage, both because it was legally unsustainable and because the means never fit the end. In the FAIR case, the law schools claimed that the Solomon Amendment that punished schools for banning military recruiters violated the First Amendment rights of the law school, or some part of it. The Supreme Court rejected this claim, 8-0.

One of the law school administrators at the front of the military recruitment ban was Supreme Court nominee Elena Kagan, whose hearings are this week. If people like her really wanted to change the military, they should have taken a page from Jerry Falwell and Pat Robertson's playbook and been trying to get more Harvard lawyers in the JAG corps, rather than less. The military recruitment ban was unjustified and unjustifiable, legally and practically. If it's true that liberals and centrists are less likely to choose the military of their own accord, then would-be liberal reformers like Ms. Kagan should have been trying to do more not less to encourage them to pursue military careers. It would appear that General McChrystal could have have used a few on his staff, so that he might at least have had more of a clue when he or others around him were saying stupid things.

Law schools go down in Rumsfeld case, 8-0

Today the Supreme Court decided Rumsfeld v. FAIR against the anti-American military law school faculties, by a vote of 8-0.

Fourth Circuit and RLUIPA

Loblaw has this post titled "Fourth Circuit Knocks the Teeth out of RLUIPA."

In Madison v. Virginia, on appeal from the W.D. Va., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Michael and Duncan, held that the Religious Land Use and Institutionalized Persons Act is constitutional as applied to the Commonwealth of Virginia except to the extent that it authorizes awards of money damages.

On the Spending Clause issue, the Court rejected Virginia's arguments, including the claim that the Supreme Court's decision in Rumsfeld v. FAIR somehow restricted the authority of Congress - since after all, that case "rejected a Spending Clause challenge."

On the money damages issue, the Court concluded "that RLUIPA's 'appropriate relief against a government' language falls short of the unequivocal textual expression necessary to waive State immunity from suits for damages." The Court went on to conclude that the Civil Rights Remedies Equalization Act was inapplicable to RLUIPA.

This outcome sounds like one of those Rehnquist-era federalism decisions, but since the panel included Judge Michael it seems unlikely that there would be a different outcome on rehearing by the en banc court.

In Lovelace v. Lee, Judges Michael and Wilkinson disagreed on the claims of a Muslim inmate at Keen Mountain against prison officials under RLUIPA and the First Amendment. Judge Kiser for the W.D. Va. granted summary judgment for all defendants on all claims.

Judge Michael, joined by Judge Motz, vacated summary judgment against a correctional officer in his individual capacity on the plaintiff's Free Exercise and RLUIPA claims, and vacated summary judgment against the warden in his official capacity. Judge Wilkinson agreed the claims against the individual officer should go forward, but dissented as to the official capacity claims against the warden.

In response to Judge Wilkinson's strongly-worded dissent, Judge Michael explained: "Today's remand provides nothing akin to a license for courts to plunge into prison policymaking or prison management. We merely require that the prison itself explain in a responsive fashion why the Ramadan policy's burdens on religious exercise are justified under RLUIPA's standard. It is our dissenting colleague who delves into prison policymaking by coming up with his own reasons as to why the policy's restrictions are necessary to insure safety and security. If a court could, as the dissent would have it, offer explanations on its own, then prisons would be effectively relieved of their responsibilities under RLUIPA. Or what is more fundamental, court-generated explanations would cut severely against Congress's intent to provide inmates with greater protections in the area of religious exercise."

Of the claim against the warden, Judge Wilkinson wrote: "Thus the majority's remand must be seen for precisely what it is: an invitation to finetune prison policy from the judicial perch. While a prison policy may well be called into question where it imposes a substantial burden on religious freedom, this is not such a case. It is plaintiff Lovelace who must prove under the statute that the policy, as opposed to Lester's violation of it, somehow imposed a substantial burden upon his religious exercise, and he has not even begun to do so. To enlarge a case involving an essentially individual act into a wholesale attack upon a sound prison policy, on no fewer than three different grounds, not only makes a mountain out of a molehill but also reinforces the old adage that no good deed goes unpunished. Under the majority's view, the most progressive and enlightened prison policy imaginable, a policy that accomodates every religion in every way, would be called into question by a single policy violation. Forcing prison officials to pay for their own progressive steps to protect religious liberty runs counter to the precise statutory and constitutional provisions that the majority purports to enforce. I therefore concur in the judgment remanding the case for further proceedings against defendant Lester, but I respectfully dissent from the majority's RLUIPA, free exercise, and due process determinations as to the prison policy itself."

Somewhat obscured by these fireworks, the Court's discussion about qualified immunity strikes me as wrong. Judge Kiser held that the individual was entitled to qualified immunity because the constitutionality of RLUIPA was clearly established. Judge Michael rejected this conclusion, because at the time of the events in question, no court had yet ruled one way or the other on the constitutionality of the new statute. RLUIPA was passed by Congress after the Supreme Court held that its predecessor was unconstitutional. To say that its constitutionality was clearly established in 2002, when it was an open and difficult question for the appeals courts when they made their decisions in 2003 and later, seems to turn the qualified immunity analysis upside down. RLUIPA was born of constitutional uncertainty, which is the very stuff of which the qualified immunity defense is made.

Friday night fight

I have been watching the replay of the moot court argument of Rumsfeld v. Fair on C-SPAN, recorded earlier tonight in the moot court room at my alma mater, with Rodney Smolla arguing for the government and Beth Brinkman and Walter Dellinger arguing for the law schools and a group of professors. As I listened to the arguments, the thought struck me that the respondent's position is unspeakably lame, then the panel of six Supreme Court correspondents (David Savage, Joan Biskupic, Linda Greenhouse, Stuart Taylor, Dahlia Lithwick, Charles Lane) and two professors (Gerhardt and Van Alstyne) came out and voted 8-0 to reverse.

Also, I was entertained by the setting, since I've been in that room and I recognized a few people in the audience, including William Hurd and Judge Felton, with President Nichol there, big as a moose.

It was almost as much fun as a replay of Ali-Frazier.

Seminole nickname may be chopped

On reading that Florida State vows to keep its mascot, I thought of the Supreme Court's decision in NCAA v. Tarkanian, 488 U.S. 179 (1988), in which the split Court held that the NCAA was not a "state actor" for purposes of 42 U.S.C. § 1983.

So, FSU even it is an "expressive association" within the meaning of FAIR v. Rumsfeld (the Solomon Amendment case, now before the Supreme Court) would not have a constitutional remedy against the NCAA.

By contrast, I suspect that following Brentwood Academy v. TSSAA, 521 U.S. 288 (2001), a state high school athletic association could be sued under 42 U.S.C. § 1983, if it took on the naming of mascots.

No way

If the Solomon Amendment litigation is a civil procedure and constitutional law quiz, and this Third Circuit opinion in FAIR v. Rumsfeld has all the answers, I think I would get an 'F,' because I disagree with almost every single bit of this opinion from standing on down. Law schools as victims of civil rights violations! Why not a suit brought on behalf of the philosophy department? Or the field hockey team? The comic book section of the library? These are bogus plaintiffs, with bogus injuries, incapable of speech in any sense that makes sense to me. "The law schools are expressive associations," said the Court. As one of my old clients would say: "Balderdash!" If they are, they should not be. I say this having read all the recent Liberty Law School-bashing in recent weeks.

I wonder, how can a state allow its public-funded law school to have a particular "message", but can't sell "Choose Life" license plates? (Then again, maybe none of the unidentified members of the plaintiff association were state schools.) Also, in the brave new world of law schools as civil rights victims, I wonder, what sort of lawsuits will be filed by the law school at Liberty?