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.