The Wisdom of Solomon

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.

Comments

[Doug Hoffer]

If anyone is interested in listening to the Supreme Court oral arguments in Rumsfeld V. Fair, they are available at C-SPAN's website.

[AJTALL]

Professor,

Always an honor to read one of your articles. You mention that all the law schools have to do is provide a room to interview. Doesn't that condition the funding on the waiver of property - the right to exclude people from your land? In regards to free speech, you mention the arrival of military types gives an opportunity for others to vent at the military. Isn't that a form of compelled speech?

Don't you think there are good reasons to have the "don't ask, don't tell" policy? Sleeping in cramped facilities, showering, and the risk of lovers looking out for themselves rather than the entire platoon or battalion. No offense, but it doesn't sound like you've given it much thought.

[Roach]

As Dale illustrated, free speech and free association principles are in mortal conflict with the nondiscrimination principle that defines much of modern liberalism.

There are important values involved when groups define themselves by whom they associate and disassociate from, that is, by whom they allow to be members. The law school wants to disassociate from those groups and employers that discriminate against gays and others. The Boy Scouts in Dale wanted to disassociate from those who are homosexual. Without addressing the merits of these positions, we should recognize that labeling disassociations and the values they represent "abusive" and "inappropriate" does not take such decisionmaking and such values outside the realm of a value-laden expression and a value-laden association potentially governed by First Amendment Principles.

That said, such expressions can come in forms no one wants to defend. A racist employer is expressing something in denying jobs to minorities. He is arguably compelled to say something--speech-wise and associationally--in complying with nondiscrimination laws compelling him to hire minorities. If one is truly committed to freedom and free speech as a value trumping other important values of the community, then one should abandon the legally mandated requirements of nondiscrimination altogether. But if one accepts the nondiscrimination principles, then one must be prepared to allow other laws by a community trying to ban certain actions it perceives as bad, antisocial, immoral, likely to increase social conflict, and the like.

I accept at least two caveats limiting the extreme libertarian interpretation of the First Amendment, even though I think nondiscrimination laws are unwise for other reasons.

First, actions are not necessarily speech. I may believe in the principle that robbery is the most beautiful thing a human being can do and find my expression curbed by generally applicable laws against it. That does not create a compelling First Amendment claim. In other words, actions are not speech, whethr those actions are doing drugs, burning flags, taking one's clothes off, or discriminating against someone. Any broader view of speech leads to a completely arbitrary designation of some actions as speech--flag burning, nude dancing--and others as unprotected conduct--robbery, discrimination.

Second, there are other important values under our constitutional structure, including equality and the creation of community norms through the police power, that should limit the application of the First Amendment when applied to the decisions of localities. I read the first word "Congress" as important in the First Amendment and think a greater sphere of government action should be permitted at the local level, whether it's banning discrimination, flag burning, or public nudity.

That all said, I doubt the fair-weather friends of free speech on the left, who are more than willing to compel speech in the service of nondiscrimination, will accept that their stated belief in the singularity of free speech principles requires the curbing of such laws anytime soon, even though they deny the importance of the act/speech distinction and police power principles that I set out above. I mean to say that I don't think the leftists who accept free speech principles when applied to allow the law school to ban military recruiters would accept the same application by a law school that wanted to ban gays and those that hire gays, i.e., most of them did not go out on a limb for the Boy Scouts, even though they should have if they thought free association principles allow expressive disassociation to express a voluntary community's norms.

[Dale Gribble]

On the level of the student body, dont students who are looking to interview with potential employers entitled access to them with on campus interviews? The law school faculty and its gay rights chorus claim to be the speakers who are coerced into advocating repugnant positions. but who elected them to censor the majority who dont care or are willing to consider joining the armed forces even if the military discriminates.
For the rank and file law students high paying jobs are rather scarce right after graduation. And for others jobs offering immediate court room experience are few and far between. I think until the protesting law schools can offer jobs to everyone, the deans should shut up and salute the military recruiters when they come to visit.

[Darryl]

Are you serious about allowing gays in the military? You obviously have never been in the military. You open up the military to gays and you discourage straight people from joining and cause more soldiers to retire early. What you'll end up with is an all-gay military.

[Mark Moller]

Prof. Epstein:

How can you reconcile your take on unconstitutional conditions with your claim above (as I interpret it) that Dale is distinguishable in part because it involved a direct regulation rather than conditioned funding?

The logic of that position seems very broad indeed. Take the government's formulation of this position in its briefs in this case, which posits that O'Brien applies even to conditions involving speech qua speech because the condition makes the restraint "indirect". The only qualification the government makes to this position is that the condition must not be designed to suppress "dangerous" speech.

This might easily be applied to, for example, demand that universities broaden the "diversity" of viewpoints represented by faculty and courses from which the government recruits miliary intelligence officers on pain of having Title VI funding withdrawn. And indeed that's exactly what the House not only proposed but passed in 2003--by suggesting an advisory board should be set up to monitor whether Middle East studies programs that receive Title VI funding adequately represent a pro-American viewpoint. That doesn't suppress dangerous speech: it furthers "diversity" of viewpoint.

If FAIR loses it has to be because (1) there is no recognizable speech or assocation right asserted (eminently arguable, but hard to square, it seems to me, with your past broad defense of assocational rights, which you suggest dovetail with the right of organizations to exclude people "not only from their ranks, but from their facilities") or (2) because the military's interests (access to the very best Yale law students) vastly outweigh any right that associational (or property) right that exists (much more dubious--national security will survive if the military doesn't have a fold out table in the Yale and Stanford law school cafeterias).