Alarum  

The Military Invades the Campus

by Mark Moller

The first casualty is free speech.

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A year ago most academics cheered when the Supreme Court ruled that the University of Michigan could use race-conscious admission criteria. Now that decision is proving to have surprising con-sequences for academic freedom, particularly in Middle East Studies programs and for on-campus military recruiting. The consequences are not simply hypothetical. They're playing out in the Third Circuit, in a case called Forum for Academic and Institutional Rights (FAIR) v. Rumsfeld.

The root of the problem is a legal brief filed by a host of ex-military and ex-Pentagon officials in Grutter v. Bollinger, a landmark case in which the Supreme Court ruled that a university may use race as a factor in deciding whom to admit. The brief argued that national security requires elite universities to operate race-conscious admission programs. Its argument was simple: the military needs diversity; many officers come from colleges; therefore, colleges must have racially diverse student bodies.

In accepting this argument, the Court broke down longstanding barriers against government invocation of national security to justify incursions on university freedom. Now the government is imposing new restrictions on university speech based on national security considerations. And Grutter is making the government's job easier.

A Wartime Decision

The immediate subject of the military brief in Grutter v. Bollinger seems far removed from national security. Grutter involved an equal protection challenge to the University of Michigan Law School's policy of using race as an admission criterion in order to achieve a "critical mass" of minority law students.

Yet the ruling is a wartime decision. Oral argument occurred only days after the invasion of Iraq, and the decision was released not long after President Bush's declaration of "victory" in Iraq. Against the backdrop of war, the amicus brief filed by such defense notables as Robert "Bud" McFarlane, the Reagan-era architect of the Iran-Contra scandal, and Norman Schwartzkopf, the hero of the first Iraq war, proved especially persuasive.

The brief asked the Court to uphold the University of Michigan's affirmative action program as an essential prop for a racially diverse military. For a diverse military effectively to protect national security, the military brief argued, the military must have a diverse officer corps. What is more, the military argued, it is a "small step" to conclude that national security requires civilian universities — from which the military recruits some officers — to expose students to racial and viewpoint diversity on campus.

The military brief proved to be a resounding success. In a case that attracted over 100 amicus briefs, the Court quoted the military brief more than any other single submission, and accepted the brief's central premise: that national security requires the University of Michigan Law School to use race as a selection criterion. As the Court explained, it is imperative that the "most selective institutions" of higher education "must" expose students to "diversity" if the military is to "fulfill its principle [sic] mission."

Taking Aim at Academic Freedom

While the Court's decision gave universities what they wanted — the right to discriminate in admissions — the national security policy arguments accepted in Grutter raise troubling concerns for their academic freedom.

Grutter is the first Court opinion to recognize a national security interest in the way universities administer admissions. Indeed, Grutter is the first decision in decades to recognize that "national security" requires that universities "must" take any action favored by the government.

The national security interest recognized in Grutter implicates campus speech, a core concern of 1st Amendment protections for academic freedom. This is so because of the way the Court characterized Michigan's admissions system. The Court did not treat Michigan's use of race as an end in itself. Instead, the Court held that the school uses race as a proxy for expanding student "exposure to . . . diverse . . . cultures, ideas, and viewpoints."

In other words, Grutter viewed the Michigan admissions program as a system for (indirectly) regulating the distribution of speech on campus. In that context, the Court's emphasis on national security is particularly troublesome. If race is a proxy for viewpoint, then the Court's recognition of a national security interest in the Michigan admissions program comes uncomfortably close to recognizing a national security interest in the way universities manage the exchange of views on campus. Indeed, the military brief implied as much: the brief's "national security" argument invoked Haig v. Agee — a landmark 1981 precedent that upheld government power to regulate speech (not race) based on sufficiently "compelling security interests."

At the same time Grutter has weakened a key protection against government incursions on campus speech that are justified on national security grounds: the requirement for establishment of a causal link between the speech and endangerment of national security. In the 1971 Pentagon Papers Case Justice Brennan stressed that only "government allegation and proof that [speech] must inevitably, directly, and immediately" threaten national security could provide a basis for government regulation of expression (emphasis added).

That test is hardly met in Grutter: given that the vast majority of University of Michigan law students will never serve in the military, much less become officers, the national security interest in the make-up of the student body is far from "inevitable," "immediate," or "direct." In short, in an atmosphere where national security has a special cachet, Grutter has weakened significantly the presumption against government oversight of the marketplace of ideas on campus.

Grutter and Military Recruiting

Grutter's threat is not an idle one. Litigants have already used Grutter as a precedent supporting a government "security" interest in campus speech in FAIR v. Rumsfeld, a case scheduled for oral argument before the U.S. Court of Appeals for the Third Circuit later this year.

FAIR v. Rumsfeld arises from attempts by a number of law schools to bar the military from on-campus recruiting because of military discrimination against gay students. The government threatened to withhold federal funding from those law schools, and the FAIR plaintiffs sued to enjoin the government from carrying out its threats. The FAIR plaintiffs include academic rights organizations and law professor Erwin Chermerinsky. Together, these plaintiffs argue that the government's coercive use of the purse-string infringes on private universities' freedom to express principled opposition to discrimination against gay and lesbian students.

However, after Grutter, the government has some new arguments at its disposal: if national security requires that universities must promote effective military recruitment by regulating the racial demographics of the student body, then doesn't that also suggest that the freedom of law schools to interfere with or burden military recruitment on campus has limits?

An amicus brief filed by ex-military law students thinks so. The ex-military students' brief zeroes in on Grutter's implications for "viewpoint diversity"— and suggests that, under Grutter, universities must take care to ensure that viewpoints favoring military service are represented on campus. Students with a military background, argues the brief, "add value to law school classroom discussions, particularly on matters of national security, foreign affairs, and other issues connected to America's armed forces." The brief adds that "[i]f the plaintiffs succeed . . . law schools will lose part of the vibrancy and diversity of the academic environment" that Grutter recognized is "so critical to law school success."

The brief's Grutter argument underscores that, after Grutter, a university's freedom to manage debate on campus is no longer sacrosanct — and may well count for less when litigants are able to characterize ground rules set by universities as a threat to both "viewpoint diversity" and "national security."

Grutter and Federal Oversight of Middle East Studies Programs

Grutter, by suggesting a link between viewpoint diversity and national security, is also relevant to H.R. 3077, a bill now making its way through Congress. The bill would expand Congress' power to scrutinize university curricula and to punish "anti-American" scholarship. It is a nightmare for academic autonomy.

Yet, the bill is arguably less vulnerable to legal challenge after Grutter.

H.R. 3077 would provide new federal funding to Middle East studies programs, which Congress believes is needed to train more Middle East experts for government service. As an incident of federal funding, the bill would establish a curriculum oversight boardÊtasked with recommending — from a national security standpoint — whether grant recipients ensure a proper balance of "diverse perspectives" in university Middle-Eastern studies programs.

Proponents of the boardÊargue that Middle-Eastern studies programs must include views less "anti-American" and more friendly to American foreign and military policy. As University of Michigan Middle East specialist Juan Cole points out, the bill is accordingly a recipe for politically motivated harassment: "I could imagine the board making it a criterion that the politics of a faculty are not balanced, so the university must balance things out by hiring pro-Likud scholars, or else funding could be withdrawn."

Grutter was decided only two months before H.R. 3077 was introduced in Congress. While Congress did not cite Grutter as an authority for the legislation, the decision makes the legal case for Congress' power to enact the bill stronger.

Congress justified the proposed advisory board based on a link between viewpoint diversity and national security similar to that suggested by Grutter. Rep. Howard Berman (D-Calif.), for instance, argued that the board is designed to enhance government military recruitment by expanding student exposure to viewpoint diversity and eliminating a monopoly of narrow views "at odds with our national interest." Similarly, Rep. John Boehner (R-Ohio) claimed that the bill will "strengthen and renew higher education" by simultaneously "expanding diversity" and addressing a "critical piece of our national efforts to fulfill national and international security needs."

If the government's national security interest in military recruitment requires that civilian universities ensure viewpoint diversity in a law school — by regulating racial demographics to promote more diverse ideas and viewpoints to baby lawyers — then it would seem reasonable for Congress also to monitor the diversity of ideas and viewpoints presented in programs that produce government specialists for the CIA, the Pentagon, the NSC, and the FBI.

After all, the connection between diversity, recruitment of military officers, and national security in the latter context assuredly is no less attenuated than the connection between law school viewpoint diversity, military recruitment, and national security suggested in Grutter.

Be Careful What You Wish For

Grutter is a case in which proponents of affirmative action relied on policy, not principle, to achieve their goal. Now, one of those policies, national security, is threatening unintended consequences that may prove especially costly in the post-September 11 climate, in which courts and legislatures can be expected to take an especially broad view of our national security interests.

Even if universities repent, the damage has been done. After Grutter, the notion that campus viewpoint diversity can and must take into account national security has been given a new purchase.

Expect Congress and the president to push the envelope.

© Copyright 2008, Liberty Foundation

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