Solomon Amendment likely to survive
Congress’ demand that law schools give military recruiters equal access to their students, despite the military’s policy of barring homosexuals from service, appeared to have survived quite easily its constitutional test in the Supreme Court on Tuesday, at least if oral argument reflects the Justices’ actual leanings. Aside from Justice Ruth Bader Ginsburg and, possibly, Justice David H. Souter, the so-called “Solomon Amendment” appeared to draw no serious opposition from the bench.
Chief Justice John G. Roberts, Jr., made it clear in several instances that he sees the case as solely one in which the law schools can pursue their desire to exclude the military’s recruiters simply by giving up federal funds. Other Justices, while making somewhat more nuanced comments, seemed to be troubled by the prospect that a major First Amendment ruling in favor of the law schools would open the way for individuals to resist obeying all kinds of laws — including federal anti-discrimination laws — by claiming their refusal to obey was a matter of their beliefs or conscience.
And, with some concessions by Solicitor General Paul D. Clement, some of the Justices — especially Sandra Day O’Connor — appeared to be satisfied that the law schools can get across their anti-discrimination message even while allowing military recruiters on campus and giving them equal access. Clement went quite far in saying that the Solomon Amendment would permit university and law school officials to engage in robust protests against military recruiters — including jeering when they walk into the room at a jobs or career fair.
Clement, in fact, was so expansive about the kind of protests he said the Solomon Amendment would not block that Justices Antonin Scalia and Anthony M. Kennedy voiced some concern that this might actually obstruct the military’s chances of any successful recruiting. The Solicitor General, however, did not yield, saying that military recruiters “were not afraid to confront speech” in opposition to their efforts.
The counsel for the law schools, New York attorney Joshua E. Rosenkranz, made reasonably well most of the points to be made on his side of the case, but to no apparent avail. And, by accepting somewhat extreme hypotheticals about extensions of his First Amendment protest argument, Rosenkranz opened the way for Clement, on rebuttal, to stress that there was “no limit to their argument” so that “more is at issue here than the exclusion of homosexuals.” The Court should be worried, Clement said, about law schools next objecting to military recruiters on a wide array of other grounds — objections to the military’s exclusion of women from combat positions that are the route to leadership, opposition to the war in Iraq, or to the war in Afghanistan. And, he said, “we have to worry about this coming back in the context of Title VI and IX.”
It was no surprise that the Solomon Amendment’s most avid supporter on the Court was Justice Scalia. He mildly scolded Clement for basing much of his argument on Congress’ power to attach strings to federal funds’ receipt, and not on Congress’ power “to raise and support armies.” Recruiting officers on college campuses, Scalia suggested, was a constitutionally endowed activity of the military. “We have said the judicial deference [to Congress] is at its apogee when Congress acts to raise and support armies. That’s precisely what we have here,” Scalia said.
But Justice Kennedy was also equally fervent in his support of the Solomon Amendment, as he openly fretted that “resistance to any statute could be justified as expressive speech.”
Why is this even a close case?
The Solomon Amendment can’t be invalidated without calling into question longstanding federal civil rights statutes enacted under the spending clause.
Requiring schools to tolerate military recruiters on the same basis as other recruiters, for a brief visit to campus, is a lot less of a burden on a public college’s autonomy than requiring them not to discriminate on the basis of religion in admissions — something the 1964 Civil Rights Act forbids and allows the attorney general to sue over (42 USC 2000c, I think) — especially since an admitted student (say, an Evangelical Christian whose religion excludes gays and lesbians) is present on campus for four years, not just the one day that a military recruiter is present.
Yet no one questions the ability of Congress, through civil-rights spending-clause statutes, to limit colleges’ discretion over their student bodies.
The Third Circuit decision the Supreme Court is poised to reverse was also problematic in invalidating the Solomon Amendment not only as to private colleges (which have first amendment rights) but as to public colleges (which some circuits have held do not have first amendment rights, since the first amendment protects private citizens against the government, not the government itself).
It’s easy to sympathize with qualified gay students denied the opportunity to try out to be JAGs in the military. But the military doesn’t just discriminate based on sexual orientation — it also, for better reasons, considers the age and physical abilities of its applicants — something that law school non-discrimination policies would forbid, since they cover not only sexual orientation but also age and physical disability. Age discrimination and disability discrimination are generally unwarranted, but the military is a special case.
Allowing colleges to exclude the military because it discriminates would let them exclude the military forever, even if it drops its ban on gays, since the military necessarily takes into account factors like age that would be impermissible under a law school’s own nondiscrimination policy.
That would serve as a pretext for anti-military measures by colleges that are really interested in thwarting American foreign policy, rather than advancing civil rights.
Comment by Hans Bader — December 6, 2005 @ 12:26 pm
I would point out that “Don’t ask don’t tell” does not in fact bar homosexuals from serving in the military. Instead it requires that they keep that aspect of their life private and they cannot be questioned about it.
Admittedly it’s not the best policy around, but let’s stick with baby-steps as we’ve gotten past the active investigation of potential homosexuals to a stance of toleration. A number of years from now we may see it be relaxed completely.
Finally, as others have pointed out on the net the colleges are unfairly demonizing the military when it was Congress that enacted the law in question.
Comment by TheConfusedOne — December 6, 2005 @ 8:48 pm
This is not a close case, nor should it be. It is, however, a very successful public relations gambit by FAIR.
Comment by vnjagvet — December 6, 2005 @ 8:59 pm
Alexander Hamilton said it best in his Federalist Paper No. 78: Congress is the most powerful of the three branches because it controls the money.
Recipients of federal funds have become helplessly dependent on them for their survival.
A similar relationship exists between the United States & China. We have become so dependent upon them in the international marketplace (to the tune of a $200 billion surplus in 2005), that we can no longer take an aggressively hard stance against their human rights violations.
Universities are particularly good for feeding at the federal trough. It’s legal fiction to argue that they can simply forego the money. That’s like saying you could simply cut off your leg (femoral artery & all) to free yourself from being chained by the ankle to a post. In the end, however, those who have become addicted to federal funds are largely to blame for their dilemma in cases like this.
Maybe it was the Eagles who said it best: “I guess every form of refuge has its price.” From their 1975 hit song, Lyin’ Eyes.
Comment by David — December 7, 2005 @ 12:33 am
What perplexed me was that neither side, nor the justices, addressed the fact that law schools — and most universities in general — systematically and overtly engage in discrimination that they like. “Diversity” and “affirmative action” are pure discriminatory acts by which the universities determine, without any particular objective standard other than the subjective admission office or faculty preference-of-the-day, that members of some racial and minority groups are essential to their subjective concept of diversity, and that persons from groups not considered valuable to “diversity” will be discriminated against and therefore receive less favorable — and discriminatory — treatment in relation to other applicants.
So the issue isn’t discrimination, the issue is that the schools simply disapprove of the sort of discrimination mandated by Congress in regard to the military. Admissions to schools is a zero sum game, so discrimmination in favor of one is to the disadvantage of another. The fact that affirmative action under the pretext of “diversity” is legal doesn’t change the fact that it is discrimination.
So the real issue pled by the law schools is the right to discriminate in the manner they prefer. They do not wish to endorse discrimnation based on sexual preference, which is legal in the case of the military, boy scouts, etc. — but they do prefer to discrimnate on the basis of race, ethnic origin, etc., which is legal under the affirmative action caselaw.
I was also stunned by Rosenkrantz’s reference to the “conscience” of the law schools — that clearly means that any time the law school by “conscience” decalres a war to be immoral, or certain ideas to be immoral, they reserve the right to discriminate against access by their students to employers who share the “immorality du hour.”
Can’t remember if it was Breyer or Kennedy, but one of the strongest questions was: will the law schools deny access to recruitment by law firms that take on cases against gay marriage. Excellent point, and another weakness in the Rosenkrantz presentation and rationale.
A discriminatory preference is not the same as being against all discrimnation, so the moral force or “conscience” argument was pretextual at best.
Comment by Allan — December 7, 2005 @ 9:25 am
vnjagvet, I disagree. While, arguably, this case raises awareness among the affected population, it further heightens the divide between the elite educational institutions and the rest of the country and, more importantly, between the professional officer corps and the elite educational institutions. That is a troubling and growing apspect of U.S. life (see, e.g., Robert Kaplan’s work on the issue) and, while certainly both sides are to be blamed (some of the actions at the AFA are quite uncalled for), needs to be addressed and remedied.
Comment by danfishe — December 7, 2005 @ 3:25 pm