The Solomon Amendment

The Supreme Court heard argument yesterday in Rumsfeld v. FAIR, which poses the question whether the application of the Solomon Amendment to law schools violates the First Amendment. Stated simply, the Solomon Amendment provides that if any part of a university denies military recruiters equal access to its placement facilities and services, the university will lose its federal funding. The Solomon Amendment was enacted in response to the decision of almost all law schools (including the University of Chicago Law School) in the late 1980s and early 1990s to ban military recruiters as part of an overall policy of excluding any recruiter who discriminates among students based on race, religion, gender, sexual orientation, etc.

In Rumsfeld v. FAIR, a group of law schools and law professors challenge the constitutionality of the Solomon Amendment on the ground that it violates their rights to freedom of speech and association. They claim that the Solomon Amendment violates these rights in essentially three ways: (1) It prohibits their symbolic expression of opposition to discrimination in the military. (2) It compels them to associate with the military. (3) It compels them to distribute information about military recruiting.

Before turning to those specific arguments, let me clear away some of the underbrush, which may be more important than the arguments themselves. First, during oral argument, Chief Justice Roberts asserted that the Solomon Amendment does not compel or prohibit anything. Rather, it says only that "if you want our money, you have to let our recruiters on campus." This is true, but largely irrelevant. In general, the government cannot use its leverage over resources to induce the sacrifice of constitutional rights. To put it simply, if a law said that any law school that criticizes the military will lose all federal funding, it would certainly violate the First Amendment. Roberts's point proves too much.

Second,in order to bring this case under the First Amendment, FAIR has characterized the decision of law schools to exclude military recruiters as a form of symbolic expression of the law schools' opposition to the military's policy of discriminating on the basis of sexual orientation. But that's not really what the exclusions are all about. I was instrumental in implementing the exclusion policy at Chicago when I was Dean and I was centrally involved in implementing it in the Association of American Law School when I was a member of the executive committee of that organization. The reason for the exclusion was not about criticizing military policy; it was about protecting our students from abusive and inappropriate conduct in "our house." Just as we would not allow an employer to use our placement facilities if he slapped a student, so too did we exclude employers who would tell our students that they would not even consider them because they are African-American, or Jewish, or female, or gay. It had nothing to do with criticizing government policy, and everything to do with shielding members of our "family"  on our premises from abusive treatment.

Third, although it's easy to see why FAIR found it necessary to recharacterize the exclusion as speech, I reject entirely the idea that law schools, or universities, have any business expressing (or even having) institutional views on military policy, government policy, social policy, or politics of any kind. Individual faculty members and students may, of course, express their views on such issues, but the role of law schools and universities as institutions is to create an environment in which members of the academic community feel free to express whatever opinions they wish. Their role is not to endorse political candidates, support proposed legislation, or criticize presidential  or military decisions. Except in those rare circumstances when an issue directly affects higher education (for example, a proposed ban of affirmative action in higher education or government funding of scientific research), academic institutions should not express political positions. As the University of Chicago's Kalven Report concluded, such conduct is destructive of the most central mission of a university.

Finally, to turn to the three claims. (1) The Solomon Amendment does not significantly interfere with the ability of law schools to express their opposition to the military's policy on homosexuality (although law schools should not be doing this, anyway). There are many ways in which law schools can express this view without banning military recruiters. This is analogous to O'Brien v. United States, in which the Court upheld a federal law prohibiting anyone knowingly to destroy a draft card, as applied to a person who burned a draft card to protest the war in Vietnam. The effect on speech was incidental and minimal.

(2) Although the Solomon Amendment does require law schools to "associate" with military recruiters, this compelled association does not cut to the core of a law school's constitutionally protected First Amendment activity. It would be quite different if the Amendment "required" law schools to teach certain courses, or hire particular faculty members, or admit students who are in the military. But the placement office is only tenuously related to academic freedom. The analogy here is to Boy Scouts v. Dale, in which the Court held that the Boy Scouts could not constitutionally be compelled to retain an openly gay scoutmaster. But Dale would (should) have come out differently if the issue had involved not a scoutmaster, but a plumber, which is more closely analogous to the situation in FAIR.

(3) The compelled speech argument is more interesting. Certainly, law schools are being "compelled" to distribute literature with which they disagree. But, again, because this is only tangentially related to the core First Amendment activity of law schools, and because the literature is incidental to the placement process, the impact on First Amendment rights is minimal. It would be a quite different case if the government, as a condition of federal funding, required law schools to distribute material extolling the war in Iraq or the wisdom of the government's policy of "don't ask, don't tell." But because the military is asking to circulate only material like that of other employers, this does not rise to the level of a First Amendment violation.

Let me be clear. I despise "don't ask, don't tell," and resent being instructed by the government that my law school has to cooperate with recruiters who discriminate against and abuse my students in my law school. I regard the military's policy as shameful and its insistance on entering our home to behave in this outrageous manner as immoral. But, alas, I don't think it violates the First Amendment.

Comments

[Alum]

A straightforward argument in favor of affirmative action is that the short-term costs of discriminating against an overwhelmingly dominant majority (like American white men) may be far outweighed by the long-term benefits of affirmative action for traditional victims of discrimination. No one advocates that it should be made permanent; all advocates argue is that we should make a concerted effort to level the playing field, and then transition to pure meritocracy.

[brentbrent]

I tend to agree with Roach and other like minded persons, such as Ward Connerly on this point. The only way for our society to achieve a true equality is to actually treat people equally. I think that there is an insidious side to affirmative action that has not been mentioned here. That is the degredation of the accomplishements of the truly talented minorities and to a lesser extent women. So long a preference program is in place, the assumption by an outside observer of an accomplished minority or to a lesser extent woman, will be that the program helped that person acieve their goals. While this may not be a big deal in the abstract, when people go out to find a doctor, dentist or lawyer, find out that the person they are considering hiring is from a group that has the benefit of preferences, there is a real concern in the minds of many, justifed or not, that that person is submitting his or her care or business to someone who is not the most qualified because that person needed the boost to even get into qualifying professional programs. I would rather we treat everyone equally so that this signalling problem is eradicated.

As to the Solomon Amendment, I tend to agree with Professor Stone's assessment that there is no basis for a diminution of speech by law schools in being required to allow military recruiters on campus. The fact is, the military complies with applicable law on the matter of discriminating against gays. While I respect the Law School's right to put non-discrimination policies stronger than applicable federal law into place and exclude any potential employers not in compliance with their set criteria, the Law School must also live with the consequences of such decisions. In the case of excluding a business or law firm with hiring practices outside of the policy, the Law School will not likely receive support from such business or law firm. While there are important differeces between private actors and the government, in this case, the government is acting as an employer and a benefactor to the Law School. In short, if the military's legal policy is offensive to the Law School, do not accept the gevernment's money. This, as I understand it, is the point of the Solomon Amendment. If the government conditioned funding on the Law School accepting illegal behavior or waiving Constitutional protections, I believe that the opposite result is warranted. Personally, I do not think this case is even close and will be surprised to see anything but a 9-0 ruling in favor of upholding the Solomon Amendment.

[student]

Hard to believe that President Clinton, the favorite of liberals everywhere (though he was not that liberal) adopted the don't ask, don't tell policy.

[Frederick Hamilton]

Professor Stone,

Would you please now comment on the FAIR lawsuit and the fact that so many theoretically smart law school professors could have gotten the law wrong. A unanimous vote by the Supreme Court with a sting rebuke by the Chief Justice is a pretty significant slap down and calls into question just what all of you must have been thinking in being a part of the lawsuit. Did you not understand the law? Or was this simply a grandstanding frivolous case by law professors who should have known better? The case is over, it is time for you to explain your gross mistaken position in all of this to those of us who don't understand the law as well as you do. Or do you hold the position that a unanimous Supreme Court was out to lunch and simply got it wrong? Please your explanation.

[Frederick Hamilton]

Professor Stone,

It has been over a week since the 8-0 vote and the single voice opinion (i.e, no I agree but hang on while I parse the decision concurring comments from the other justices) eloquently and cogently delivered by the Chief Justice. When can we expect your response to the decision? Also, why were the 36 high powered law schools (only 26 of which had the fortitude to allow themselves to be identified publicly) so off the mark regarding constitutional law. To be fair, the Third Circuit Court of Appeals got it very wrong also, by a 2-1 vote. Again, would you please explain the difficulty in getting the law right and while you are at it, could you explain why 10 law schools were unwilling to be named publicly as members of FAIR?

[Frederick Hamilton]

Professor Stone,

I can't put it any better than Professor Banzhaf.

"Opinion: When Law Professors Don't Know the Law
By JOHN F. BANZHAF III

The Supreme Court's unanimous ruling upholding the Solomon amendment, which allows the federal government to deny funds to colleges that don't give military recruiters the same access to their campuses as other employers (The Chronicle, March 6), suggests that many constitutional-law professors should receive failing grades in their own field. Not only were they unable to convince conservative members of the court of their position, but even the most-liberal justices rejected their arguments."

When will you comment? Or more precisely, will you comment?

[Frederick Hamilton]

Professor Stone,

If you are unwilling to explain why your position on Solomon was rejected 8-0 then maybe Professor Banzhaf is correct; you really don't understand constitutional law very well. There must be someone at the University of Chicago Law School that can explain why you and FAIR got the constitution so wrong. Or at least, acknowledge you knew all along FAIR's position was grossly lacking and you and many other law professors believe in filing frivolous law suits.