Laying Low the High Flying Evangelicals at the United States Air Force Academy? Thanks, But No Thanks

Journal of Law and Education, Oct 2007 by Fitschen, Steven W

In Service Before Self? Evangelicals Flying High at the U.S. Air Force Academy,1 Heather Cook argued that a lawsuit alleging violations of the Establishment Clause brought by Michael Weinstein against the United States Air Force and its Academy was fatally flawed and that a better crafted lawsuit would have resulted in a victory for Weinstein.2 This article agrees that Weinstein's lawsuit was fatally flawed, but disagrees that a better crafted lawsuit would have carried the day. The larger problem is witii Cook's article, not with the activities at the U.S. Air Force Academy ("Academy"). Not only Weinstein's lawsuit, but also Cook's analysis was fatally flawed.

Cook's article contained several problems. First, as discussed in Part I, her description of the situation at the Academy3 was problematic. Second, as discussed in Part ?, her proposed resolution of the "problems" at the Academy4 ignores the text of the Constitution. Third, as discussed in Part IU, her analysis is not correct under current precedent.5

I. FACTUAL DIFFICULTIES

The primary flaw with Cook's article may be that she is tilting at windmills. The problems she described at the Academy are first, overstated, and second, largely already eliminated.

As for the first problem, Cook inexplicably chose to rely almost exclusively upon a report by Americans United for the Separation of Church and State (AU) as the source of her information.6 To the extent that she supplemented this report, she chose to rely on media reports of what has happened at the Academy. She cited the AU Report nineteen times and media accounts nine times in her thirty-seven footnotes to support her factual assertions about conditions at the Academy.7

While these sources could, theoretically, be valid, they are particularly problematic in the current context. First, AU has a stake in the outcome. AU is, in a word, a "movement" organization. It is a strict separationist organization.8 Even in an environment of legitimate concerns, one might expect AU to claim as violations incidents, practices, or procedures that are not violations. Second, in addition to media reports being notoriously biased generally,9 the media reports about the Air Force Academy situation specifically are problematic.

I will examine each point in turn. First, Cook should have properly discounted the report for any potential bias. Facilitating this task, the Air Force's own report-the so-called Brady Report-contained tiie complete text of the AU report as its Appendix H.10 Although Cook cited the Brady Report several times directly, she did so only for negative matters.11 Second, her reliance on the media reports was particularly problematic since, as the Brady Report repeatedly pointed out, these accounts were both inaccurate and exacerbated the situation at the academy.12

In addition to overly relying on these sources, Cook underutilized the litigation documents available from Weinstein's lawsuit.13 Cook cited several of these documents in her article,14 but she cited only Weinstein's documents for the facts, admitting that most of his factual claims mirror the AU report.15

Cook compounded this omission in two ways. First, Cook did not admit that the facts in this case were hotly disputed.16 Second, she relied upon media reports for what was probably the most hotly debated factual allegation of all. She claimed that after the lawsuit was filed more "allegations of misconduct within the Air Force have come to light including an Air Force Recruiter [Burliegh Phillips] who was told at a convention of Air Force Recruiters that he 'needed to accept Jesus Christ in order to perform [his] duties and that he should 'use faith in Jesus Christ while recruiting.'"17 This description of the facts makes it sound as if these allegations had nothing to do with the case, whereas in reality they were the subject of the Second Amended Complaint.18

Why does this matter? After the filing of the Second Amended Complaint and after the publication of the very newspaper article that Cook cited, Phillips himself renounced the story.19 The irony is that he assumed that the article, carried by USA Today, had misconstrued his words.20 Unfortunately for his lawyers, who were also Weinstein's lawyers, the story accurately stated the contents of the Second Amended Complaint.21 Thus, the recruiter had publicly repudiated the Second Amended Complaint that had been filed on his behalf. He stated that the story (as he thought, but in reality the Second Amended Complaint) "is inaccurate and does not reflect my true feelings . . . . The article implies explicitly that I am being subjected to regular and persistent proselytizing by superior officers. This is absolutely false and a horrible twisting of my statements. . . . [A]t no time have I been . . . told by a military member to become a Christian nor have I been told to use Jesus as a tool in recruiting by any member of my current command or anywhere within the Air Force Reserve Recruiting."22

As one might imagine, quite a bit of damage control followed.23 Nonetheless, Phillips, who did in fact want to be part of the lawsuit,24 had been intellectually honest enough to tell the truth about the article and along the way about the Second Amended Complaint.