More on Alito

One of the things Judge Alito is proud of is his membership in the Concerned Alumni of Princeton, back in the mid seventies.

hilzoy, at Obsidian Wings has a post about it. It supports the general trend I see that Alito is against things I think are good.

Some exerpts:

"-- In 1973, CAP mailed a letter to parents of freshmen implying that their sons and daughters were living in "cohabitation," rather than simply coeducational dorms.

— In 1975, a CAP board member tried to disrupt Annual Giving by writing to alumni in the business community to consider whether their gifts were "being used to undermine, subvert, and otherwise discredit the very businesses which are helping fund private education.""

Those aren't just hilzoy's take on the matter, those are quotations from the Daily Princetonian.

hilzoy also points to Steven Dujack, of the Princetonian, who says, "So in 2005, we know that in 1985, Alito belonged to a group that was dedicated to pointlessly interfering with the functioning of a university because its student body had representative numbers of women and minorities, as required by law. A group which, for its entire existence, used as its only tactics dissembling and dirty tricks; the list above doesn't begin to do justice in describing the organization's destructiveness. A lot of people were hurt in the process. A great university was damaged."

hilzoy (a Princeton alum, from the time in which CAP was active) points out the things which are lost to those of us looking back and seeing CAP as a strange bit of folderol, people making a stink about things which didn't really matter, To understand CAP, you really have to understand that until the late 60s, the almost total absence of black students at Princeton was a feature, not a bug. It was one of the reasons people went there.

Consider, against this backdrop, the following quote:


"Prospect" was founded in October 1972 by the then-newly-formed CAP, which was co-chaired by Asa Bushnell '21 and Shelby Cullom Davis '30. The latter, who was the University's largest donor at the time, was a strong traditionalist, firmly opposed to the many of the new directions Princeton was taking, including coeducation.

He wrote in "Prospect": "May I recall, and with some nostalgia, my father's 50th reunion, a body of men, relatively homogenous in interests and backgrounds, who had known and liked each other over the years during which they had contributed much in spirit and substance to the greatness of Princeton," according to an account in "The Chosen," a book by Jerome Karabel on the history of admissions at Harvard, Yale and Princeton.

"I cannot envisage a similar happening in the future," Davis added, "with an undergraduate student population of approximately 40% women and minorities, such as the Administration has proposed."


And:


"An alumnus wrote in 1974 in CAP’s magazine that “We had trusted the admissions office to select young men who could and would become part of the great Princeton tradition. In my day, [Dean of Student Affairs] Andy Brown would have been called to task for his open love affair with minorities.”

For a sense of Prospect's general level of discourse:

"People nowadays just don't seem to know their place," fretted a 1983 Prospect essay titled "In Defense of Elitism." "Everywhere one turns blacks and hispanics are demanding jobs simply because they're black and hispanic, the physically handicapped are trying to gain equal representation in professional sports, and homosexuals are demanding that government vouchsafe them the right to bear children."

And this:


"CAP supported a quota system to ensure that the vast majority of students would continue to be men. Asa Bushnell, then chairman of CAP, told the New York Times in 1974 that “Many Princeton graduates are unhappy over the fact that the administration has seen fit to abrogate the virtual guarantee that 800 [out of roughly 1,100] would continue to be the number of males in each freshman class.”

And for those conservatives who oppose affirmative action on the grounds that we should pay no attention to gender or ethnicity:


"Another article published that same year bemoaned the fact that "the makeup of the Princeton student body has changed drastically for the worse" in recent years--Princeton had begun admitting women in 1969--and wondered aloud what might happen if the university adopted a "sex-blind" policy "removing limits on the number of women." In an unsuccessful effort to forestall this frightening development, the executive committee of CAP published a statement in December 1973 that affirmed unequivocally, "Concerned Alumni of Princeton opposes adoption of a sex-blind admission policy."

Some will say this doesn't really matter, because it was on the job application where Alito claims he was just playing to the refs, doing what anyone would do to get a job (this is what those of us interested in calling things by name would call either misrepresenting oneself, or lying... neither of which; as they are self-confessed, leads me to place much faith in the answers he gives today. Past behavior often being indicitive of present and future behavior. If he'd lie to get a little job, why won't he lie to get a bigger job, one which others have said he really wants, to the point that he was described as being very unhappy when Harriet Meirs was named).

But it does, because the membership in CAP is consistent with his other statements, and his written opinions. Alito has a track record of saying, and supporting the views that women, and minorities (and that would seem to extend to religious, not just ethnic and racial) don't have the same rights as white men, nor even the same standig before the courts.

Which is against the principles of the country, and the motto above the Court, "Equal Justice Under Law".

Rumsfeld v. FAIR

This is an interesting case (and one which has no connection to the Alito nomination).

The case is about the Solomon Amendment, which removes federal funding from schools which make it difficult for military recruiters to speak with students. iocaste has a good wrap up of the general issues, here.

To sum up a group of law schools decided to refuse access to their campuses to the DoD because the DoD has discriminatory policies (specifically they don't allow homosexuals to take part in the military).

Now, the law schools didn't completely sever access, they just restricted it, limiting it to leaving literature and cards, but not direct access to students. The issue lay fallow until after 2001. After that the DoD decided this was a big deal.

There are a lot of issues here. The first is that the access to colleges seems to be something in which the Gov't has an interest (whether this interest is compelling is a differnent question, and part of what may be answered when the Court hears the case). Another is whether such limits to federal funding are valid. Can a school fight Title IX because it doesn't like it? If Solomon is struck down in toto, then such a conclusion might be justified. Certainly there is the possibilty for challenge.

Those who are against Title IX wouldn't be so happy if the same argument were used to stop the conditional federal funding of clinics which give advice on birth control which discusses abortion, which might be done on the same grounds Title IX could be challenged.

But, and this may be the narrow way the court elects to walk, there is the issue of equal access. The colleges, as Harvard points out in it's amicus brief, the schools didn't place a specific exclusion on the DoD, they merely held them to the same standard they held any other prospective employer.

As,Docuticker,says, "Today virtually all law schools have a nondiscrimination policy that prevents employers who discriminate on the basis of race, gender, religion, or sexual orientation from recruiting on campus. In 1993, Congress passed the 'Don't Ask, Don't Tell' policy, which allows the military to exclude or discharge any member who 'engages in a homosexual act' or 'states that he or she is a homosexual.' Because the military bans openly gay service members, some law schools, citing their nondiscrimination policies, began barring military recruitment on campus. In response, Congress passed the Solomon Amendment. Under the present version of the Solomon Amendment, federal funding is withheld from any 'institution of higher education' or 'subelement' (i.e., law school) that has a 'policy or practice' that 'either prohibits, or in effect prevents' military recruiters access to students 'equal in quality and scope to that provided to other recruiters.'

Harvard goes on to say, In short, the government has chosen to enforce the Solomon Amendment as if it conferred upon the military a unique privilege--one shared by no other employer, including other agencies of the Federal Government--to disregard neutral and generally applicable rules designed to govern the conduct of all recruiters. There is, however, a better way to read the statute--one that could resolve this case without requiring this Court to venture into the constitutional tangle presented in the parties' briefs. Consistent with the statute's text, its history, and the government's own rhetoric, the Court should hold that the statute confers no such unprecedented trump. Rather, like all of its legislative predecessors, the Solomon Amendment applies only to policies that single out military recruiters for special disfavored treatment, not evenhanded policies that incidentally affect the military. Because there is nothing in the statutory text that would support a special rule for anti-discrimination policies, the only alternative would be to hold that the Solomon Amendment confers upon military employers the extraordinary right to claim immunity from any policy--no matter how evenhanded--that they deem burdensome to their recruiting efforts.

So, an evenhanded use of the non-discrimination policies isn't actually discriminating against the Army, it is rather a libertarian answer; in that the society (law schools) is demanding the gov't anwer to their wishes, and doing so with what might be termed a market incentive. When the military provides what they demand (equal service for homosexuals) they will give the military what they want (unfettered access to students).

That argument, is probably the best (both in practical terms, and in terms of legal disputation) for the policies the law schools are following. It also is the best way to thread the needle between the removal of gov't interest in such incentives as affecting Title IX and other such civil rights issues; which includes such things as the discussion of abortion, where federal funds are involved.