The Mess Created by Nationalization

Tibor R. Machan

I use the term “nationalization” a bit loosely because what I mean by it is removing an area of human life from society and placing it under any, not just national, government management. So, if a municipal, county, state or federal government took, say, barbershops and brought them under
their management, this would amount to nationalization as I use the concept here.

Most law schools are, in line with this usage, nationalized institutions. And even private law schools that receive federal support, either directly or by way of grants to students or faculty, practically come under such a designation. They have become nationalized, subject to government
regimentation and management.

So now let’s look at the current case at the US Supreme court in which the issue is whether military recruiters must by law have access to law schools. To begin with, no one has some basic right to gain such access, to recruit at law schools, not unless there is a contractual arrangement giving such authorization. Law schools and other educational institutions
usually welcome recruiters because students benefit from this—they may well find a job this way. The same might also be true with military, CIA, or FBI recruiters. But no one has a human right to visit a campus to which he or she wasn’t invited, where no agreement of association has been reached.

But, of course, these places are not free institutions, not by a long shot. It is not legally up to the law school’s administration to decide who gets to invade their premises. It is now a matter of, to use the new Chief Justice’s blunt terms, “if you want our money, you have to let our recruiters on campus.”

In the case in point, many law schools have adopted a policy that employers who discriminate on the basis of race, sex and similar irrelevant criteria will not be invited on their campuses. But because of the enormously heavy financial involvement of the federal government in most of these law schools—through grants, fellowships, research support and the like—the feds have leverage by which they can coerce the laws
schools to admit military recruiters whether they meet the criteria of admission the law school’s administrators have set up. Or that is how it is likely to work out if Chief Justice John G. Roberts Jr.’s remark is any guide to what the US Supreme Court will decide.

The plain issue is: who are these people to coerce law schools about who will be admitted on campus? Where do they come off imposing their (arguably warped) criteria on free citizens who happen to be in the law education profession? Judging by Justice Robert’s perverse reasoning, if I refuse to allow someone to come into my house, he or she could go to court and claim that Machan is, after all, the beneficiary of tax funds—I do drive on public roads, use the US mails, am legally entitled to various
services and provisions of the various governments surrounding me—so my liberty to decide who comes into my home may be violated. How outrageously more intrusive, even tyrannical, could government get? Have these people ever heard of the right to freedom of association? Is that right voided because one has a student on campus who gets a government loan or a faculty member who has accepted a government research grant?

Evidently, if one goes by the remark Justice Roberts offered during arguments about the case, no one touched by any government benefits can claim any right to freedom of association, none.

Sadly, this is how it goes, with the encroachment of various layers of government into our lives. When restaurants were prohibited from allowing customers—or even proprietors—from smoking on the premises, the legal excuse (in California) was that they were connected to public roads (the sidewalks people use to approach the establishment). By this reasoning even freedom of the press is in danger—after all, newspapers, magazines, books and such are delivered to us by using public roads and mails and often the papers are sold in boxes sitting on public sidewalks.

It is not for nothing that the respect and protection of the institution of the right to private property is so vital to human liberty. Wherever it is compromised, your liberty is likely to vanish.