October 28, 2005

Bedfellows, amicus briefs, John Roberts, and Hosty

Interestingly enough, I've read absolutely nothing on the blogosphere yet about the collection of signers for FIRE's amicus brief supporting certiorari in the appeal of Hosty v. Carter (that's a page from the Student Press Law Center describing the case). One of the signers is David Horowitz's Students for Academic Freedom, and now the American Council of Trustees and Alumni (ACTA) has joined the brief.

As I've written before, my concerns about appealing Hosty is the potential for it to open up opportunities for the Court to weaken academic-freedom. At the time, O'Connor had just resigned, and I had no idea that we'd go through the shuffle we have over the past 4 months. But given Roberts's professional background representing universities, as well as his questions in the Garcetti v. Ceballos oral arguments earlier this month, my concern is at least moderately warranted. Roberts is more familiar with the arguments put forward by university administrators than other justices, and the Hosty case provides some opening for administrators to argue that academic freedom is an institutional rather than an individual right (an issue the AAUP legal staff is concerned about). Roberts's work in defending affirmative action is consistent with the view that institutional officers are best fit to make decisions, and while it is unlikely that Hosty or FAIR v. Rumsfield would be decided on such matters, I would not be surprised at all if a Hosty opinion or concurrence by Roberts inserts such an argument as dictum—not legally binding but dangerous nonetheless as a signal to the federal circuit courts.

Having said that, if the Court grants cert, I wish the appellants the best of luck. The opinion by the circuit court was wrong on its merits, and despite my concerns about an appeal on tactical grounds, I'm with the Student Press Law Center and Harvey Silvergate's recent column on the substance of the issue.

Which leads to an interesting question, about the FIRE amicus brief and its signers, which include groups avowedly hostile towards the academic freedom of faculty (Horowitz's group and Accuracy in Academia, to take two examples). Some will inevitably read the combination as proof that FIRE is insufficiently aware of the dangers posed by these groups. Personally, I don't take FIRE's soliciting or accepting signers as evidence of anything in FIRE except a professional desire to present a broad front in the brief and the signers' taking advantage of a political opportunity (to be blunt). And amicus-brief politics can be strange; I remember hearing from one professor in grad school that a particular brief was carefully crafted to be signed only by presidents and former presidents of major professional associations, precisely for the gravitas.

However, I am concerned that other defenders of academic freedom might be scared away from this case because of this coalition. I can hear it now: Who wants to agree with David Horowitz or Accuracy in Academia? That enemy-of-my-enemy-is-my-friend thinking would be dead wrong. It's one thing to stay silent on the issue of appealing the case—I think I've stated some good reasons to be cautious at least for this year—but if the Court takes up the case, it's essential that everyone stand on the right side (with students, here).

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Posted in Academic freedom on October 28, 2005 6:52 PM |