pageok
pageok
pageok
Government's Brief in Solomon Amendment Case:
The Justice Department has filed its brief in the Solomon Amendment case (the one involving miliary recuiting at law schools). The brief is available here (.pdf -- via Marty Lederman). The government's case is the easier one to make, but still, it's a good brief.
Igglephan:
One minor quibble -- isn't the Solomon Amendment really an MFN, not a guarantor of "Equal Access"? Non-discrimination policies are usually formally neutral, for instance. Requiring *special* treatment for the military does differently for the expressive speech doctrine and unconstitutional conditions analysis, than equal treatment does. The school is compelled to say that the military is subject to different standards, and effectively to acquiesce in continued discrimination against a discrete and insular minority.

I'm also not convinced by the attempt to distinguish Dale re internal membership. The terms and conditions under which schools accomodate gays and lesbians can be expressive association just as much as the decision whether to admit them. "If you won't hire one of us, you can't interview any of us" is a perfectly cogent thing for a school to express in a neutral, evenly applied, antidiscrimination policy. The brief does very well at what it has to do, but it is disingenuous to refer to the Solomon Amendment as protecting "equal" access -- more like an end-round.
7.21.2005 9:30pm
S. Obert (mail):
I fully support the government's position.

That being said, it's somewhat a moot point with regard to law school recruiting. Navy JAG, the only service I'm familiar with, consistently has many more applicants than available slots. Recent selection boards range around 10-15%, with many from elite schools being turned down.

From a policy perspective, I think the real question is what kind of implications this issue has for the military/higher education relationship in the future.
7.22.2005 12:53am
B E S:

Non-discrimination policies are usually formally neutral, for instance. Requiring *special* treatment for the military does differently for the expressive speech doctrine and unconstitutional conditions analysis, than equal treatment does.

Not true. The policies are not nuetral - at least when applied. They are specifically targeted against the military for its policies regarding homosexuality. My law school Dean puts out a letter each year under the guise of being against all discrimination, including inter alia age and sexual identity, but in reality it only applies this policy to the military. The FBI and CIA have age policies, but they are never mentioned.

Moreover, since Congress, and not the military makes these laws, under the if you won't hire one of us, then you can't interview any of us mantra shouldn't law schools ban all federal agencies until the discrimination stops - including the EPA, the State Dept., etc.

It is the lack of principled opposition to the policies that exposes those that protest as people pushing a particular agenda, and not particularly interested in anti-discrimination in general. Not to mention that there is nary a whisper when law firms hold diversity receptions. Where is the moral outrage there? I suppose you allowed to discriminate, as long as it is for a good cause, but the military - no way, we don't like them...
7.22.2005 3:02am
huggy (mail):
The Government is going to win. Government money always comes with conditions attached. A court that allows private property to be re-assigned isn't going to stand for this.
7.22.2005 8:22am