Earlier this week the Supreme Court heard oral argument on the effort by major Law Schools (not ours) to attack the Solomon Amendment on First Amendment grounds. As everyone now knows this provision is intended to strip University of all government support if they do not allow military recruiters equal access to their facilities for recruitment purposes, notwithstanding a “don’t ask, don’t tell” policy, which clearly discriminates against gays and lesbians in the military.
It seems clear from the oral argument that the protesting Law Schools are likely to go down to a thumping and deserved nine-zero defeat. But the way in which they lose is at least as important as their impending loss, and on this point, it is easy to see how matters could easily go astray.
The opening gambit in the analysis came from Chief Justice Roberts, who showed his toughness of mind by saying in effect: if you want our money, then you have to accept our conditions. Now I love the language of bargains as much as anyone. But it is always misplaced in dealing with the use of government power, at least if the doctrine of unconstitutional conditions has any place in our law. What is needed is a somewhat more modulated response.
Thus suppose that the Solomon amendment had said, if the university wants “our” money, then it has to agree for its law school to provide us with a dozen ready and willing military judges each year. Now no question that this bargain makes sense in some private contexts, but not here. The disruptive effect of the condition is such that someone, somehow would brand it all as coercive. Whatever the pure theory of the contract bargain (all is decided, said Hobbes, in accordance with the “appetites” of the parties), it won’t work here. There has to be some sorting by the strength of competing interests.
But once we abandon the Roberts position, then the government should win the balancing test hands down. First off, it does need military personnel, and this form of recruitment for entry level people is just whatever other law firm does. So it is hardly extravagant in its demands. It is only asking for equal access, not superior position.
So the only way to knock the government off its solid perch is to launch an attack on don’t ask, don’t tell—which won’t work. Even those of us who reject the rational basis test across the board for regulation and licenses, have to accept it for government management functions: that’s why it is that states can have their affirmative action programs survive in the teeth of the equal protection clause.
Nor is the government trying to use its clout to implement an unconstitutional program vulnerable to direct attack. In this regard the case for state power is much stronger here than it was in Bob Jones, where the removal of the tax exemption should have been struck precisely because the free exercise clause protects Bob Jones against any state regulation that just prohibits it from banning interracial dating (or for that matter, same sex dating) directly.
Indeed on this point the law schools should have treaded very softly because in most cases they stand four-square behind the use of tough conditions. They generally support the indefensible position of the American Association of Law Schools which insists on both nondiscrimination and affirmative action for its members. Given its own role in accreditation that represents a wholly impermissible form of coercion against schools that give excellent educations but do not accept the regnant philosophy. And it certainly calls into question the dubious strategy of conditioning federal grants on compliance with rules prohibiting discrimination on grounds of sex or disability.
It seems therefore that the Law Schools position is to oppose conditions that it doesn’t like. And the interest on the other side of the balance is either association or speech. Yet it is just odd to see the Law Schools insist that Dale v. Boy Scouts covers the case, because there the freedom of association claim, which I fully support, was against direct regulation, with no grant at all in issue. In addition, the level of intrusion differs in the two cases. It is one thing to ask for a room to interview in; it is another thing to demand that troop leaders be hired even if their behavior is in flat violation of the group’s norms and mission.
If association is a nonstarter, then compelled speech claim is still worse. No one but no one believes that the military speaks for the Law Schools because they interview on campus. In fact, the arrival of military types give an opportunity for all sorts of protesters to vent their wrath at the military for its retrograde policies and allows each individual student to refuse to interview if he or she so chooses. We could all survive this measure of coercion.
So in the end, the balance cuts sharply the other. But rather than end on that point, we should reflect on the whole sorry episode. I wish that the Congress had never passed the Solomon Amendment, but had resorted to the wisdom of Solomon instead. Ditto, for the Law Schools, who should have allowed the military to come in as a matter of course even if not obliged to do so. That way we could have avoided much of the acrimony and posturing that has marred this whole dispute. Oh, and maybe Congress will at long last get rid of “don’t ask, don’t tell,” and allow gays in the military at long last. But then again, they haven’t asked me for my views on that question. So I’ll just hold my tongue.