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ACSBlog Debate On Solomon Amendment Case:

This week, the ACSBlog will be hosting a debate between Dan Polsby and William Eskridge on the Solomon Amendment case, FAIR v. Rumseld, wqhich will be argued on Dec. 6.

Dean Polsby leads off with "An Unremarkable Use of Congress's Spending Power," noting the breadth of the constitutional power to Raise and Support Armies. A snippet from his post:

The draft isn't much thought about these days, but as a reminder, here is what was involved: The government can make you leave school or your family for years at a time, force you to live communally with lots of other men without a molecule of personal privacy, ship you overseas, censor your mail, order you into extreme personal danger and even certain death, and have you sent to prison or even executed if you refuse.

This is a broad power.

The Solomon Amendment arises under this power, and yet its exactions are slight. The Solomon Amendment does not require schools to give JAG Corps recruiters access to law schools on pain of criminal punishment. It does not -- as constitutionally it might -- simply draft all law professors into the armed services, as millions of other Americans have been drafted when their country needed them, where they could then be ordered to admit JAG recruiters and tried without a jury and punished under the UCMJ if they refused. It simply uses financial inducements to universities to encourage their law schools to allow the armed services equal access to law students.

It looks like Prof. Eskridge hasn't posted yet--it looks like his riposte will either come later today or tomorrow.

Update:

Eskridge's post is now up. I understand each person will be doing one a day for the rest of the week.

Steve:
Well, that's a frisky opener! Sounds like it will be an interesting debate.
11.29.2005 3:28pm
Joshua (mail):
IIRC one of the explicit goals of the movement to bar military recruiters from schools is precisely to make wartime drafts more likely (by making it harder for the armed forces to meet their recruitment goals), which by their logic would erode support for the next war. In other words, the opposition to the Solomon Amendment is intended specifically, if not solely, and albeit indirectly, to give the anti-war movement a political boost when the next war comes along. So, I doubt that its opponents are likely to be moved by Mr. Polsby's argument.
11.29.2005 3:52pm
Mercutio (mail):
Er, is this really all that surprising, or even controversial?

The government regularly uses the gigantic war-maul labelled 'Your federal tax dollars at work' to bribe or extort various institutions (such as, for example, those little entities called 'States') to do all KINDS of things it doesn't have the power to have them do directly. The most common exmaple that nearly everyone is familiar is requiring states to adhere to certain requirements (speed limits!) in order to receive the services and funding of the DOT.

This is just another version of that. The government has decided that it is in the best interests of the state for the armed services to have the same access to law students as other organizations. Many of these law schools disagree. In the absence of the ability to FORCE them to agree, the government offers a financial inducement to encourage them to acquiesce. You could argue this is a waste of money, of course, as I would (the resources are probably better spent focussing on recruiting avenues where the army is going to be WELCOME, just form a cost-benefit perspective) but not that the technique involved is unusual or even unsound.
11.29.2005 4:21pm
HeScreams (mail):
Mercutio: "...the government offers a financial inducement to encourage them to acquiesce." [emphasis added]

What money, exactly, does the government withhold from schools that do not comply? Recall that a large percentage of research dollars are federal, via NSF, NIH, DAPRA, ONR, AFSRO, etc. If this is the money in question, I disagree with the label "financial inducement"; this money is lifeblood. Witholding it would be tantamount to wiping several departments of a major university of the face of the earth: Electrical, Mechanical, and Chemical Engineering; Computer Science; Biology; and Medicine, for starters. The result would still be to "force them to agree."
11.29.2005 4:53pm
Steve:
Mercutio, you have missed the point. Of course the federal government routinely uses its spending power as a cudgel to compel, for example, a national drinking age. Dean Polsby's argument is significantly more powerful in that he argues the federal government would be constitutionally entitled to use far more oppressive means of reaching its goals in this area; while in most cases, the federal government uses its spending power as a coercive measure because that is the ONLY constitutional option available to it.
11.29.2005 4:54pm
Dick King:
I will point out some hypocracy in the main argument I hear against enforcing the Solomon Amendment.

Why do we need a Solomon Amendment at all? One service a law student expects from his school is help finding a good job on graduation, which of course involves on-campus recruiting visits from a variety of employers.

The law schools involved claim that they are denying the JAG folks the same access as any other potential employers get because of their anti-gay don't ask / don't tell policy.

however...

Most colleges have Alpha Phi Omega chapters, and give them permanent office space. APO is a service fraternity that is an arm of the Boy Scouts. The Boy Scouts have explicit no-gays-allowed policies. I haven't seen any furore over this. Yes, it's the attached college, not the law school per se, and some law schools are not attached to colleges that happen to have APO chapters, but I smell anti-military sentiment looking for an excuse, not gay-rights activism following its logical conclusion.

-dk
11.29.2005 5:02pm
Cornellian (mail):
I look forward to conservatives insisting that the market will deal with this problem by making schools that admit JAG recruiters more attractive to students (because they provide a better range of job opportunities) thus putting competitive pressure on schools that exclude JAG recruiters to change their policies.

Or maybe not.
11.29.2005 5:18pm
Cornellian (mail):
Could Congress draft all law professors then order them (as newly minted JAG lieutenants) to say nothing critical about the military's recruiting policies? Could it draft any critic of such policies just to shut them up?
11.29.2005 5:20pm
Houston Lawyer:
I find objections based upon the "Don't ask, Don't tell" policy of the military to be absurd. This is not so much military policy as the law of the land duly enacted by Congress and signed by President Clinton. If the schools are so incensed by this law, shouldn't they reject all federal government funding or ban on-campus recruiting by all federal governmental agencies? Also, if nondiscrimination is their main concern, why do they allow recruiting by firms that practice affirmative action? I predict a 9-0 vote upholding the Solomon Amendment.
11.29.2005 5:22pm
Dave Hardy (mail) (www):
What money, exactly, does the government withhold from schools that do not comply? Recall that a large percentage of research dollars are federal, via NSF, NIH, DAPRA, ONR, AFSRO, etc. If this is the money in question, I disagree with the label "financial inducement"; this money is lifeblood. Witholding it would be tantamount to wiping several departments of a major university of the face of the earth: Electrical, Mechanical, and Chemical Engineering; Computer Science; Biology; and Medicine, for starters. The result would still be to "force them to agree."

It's called coercion, and ... well, that's sorta the business of government. Do this, and get a tax break. Enact this law, or we cut off the money. (And as the Prof. notes, there's LOTS more coercive tools available.

I suppose there is the alternative, to shutting down major departments, of increasing state taxes a few dollars per capita to support them. Probably a lot easier than replacing federal funds for highways.

I'd have more sympathy for the argument against if its advocates seemed to have any objection to such coercion in any but the Solomon Amendment context. Or if that context did not involve "we have an associational right to restrict students' and recruiters' associational rights."
11.29.2005 5:23pm
mjg283:
The point about the market is irrelevant. Whether the Solomon Amendment is unconstitutional has nothing to do with whether the Solomon Amendment is sound policy. Besides, staffing the military is a traditional and constitutional government function that has always operated outside of the free market.
11.29.2005 5:28pm
Andy Morriss (mail):
Actually, the point about the market is relevant - law schools are a cartel that gets its market power from state action - the requirement of graduation from an ABA accredited law school to sit for the bar. One might therefore see the Solomon Amendment as a market-opening effort to expand student access to employers and employer access to students. Because of the ABA-accreditation barrier to entry, there can't be the kind of market competition that Cornellian is anxious to see.
11.29.2005 5:44pm
Robert Lyman (mail):
All this chatter about markets--and indeed, the Solomon Amendment itself--is certainly irrelevant in that it is not at all difficult to locate an officer selection office and apply to the JAG program directly. You can do the interview portion in the recruiting office or in a McDonalds next to campus. Anyone smart and motivated enough to be a lawyer (especially a military lawyer) can do this blindfolded and hopping on one leg.

And, of course, the mere presence of JAG on campus probably won't do much to generate new recruits, who either are interested in JAG or not. It's not like nobody's ever heard of the U.S. Army or is going to interview with the Marine Corps on the "What the hell?" basis they might interview with some NYC firm they haven't heard of.

This is an entirely symbolic fight on both sides. Which is not to say I don't have an opinion of whose right and whose wrong.
11.29.2005 5:53pm
randal (mail):
Uh... there's a big difference between tying highway funds to a speed limit and tying research funds to compelled speech.

One implicates the First Amendment, the other doesn't. Duh? Has anyone here even glanced at the actual case? It's not going to turn on ultra-simplistic analogies.

If it were to turn on ultra-simplistic analogies, one that at least touches the same parts of the constitution would be a federal law blocking anyone with a bumper-sticker from receiving Social Security benefits unless they also had an American flag bumber-sticker (of at least the same size).
11.29.2005 6:22pm
randal (mail):
As far as I can tell, this case turns on exactly one question.

1. Do law schools generally enjoy a First Amendment right (of association) to deny military recruiters access to the school's grounds and rosters?

The answer seems like obviously yes... otherwise Congress could just criminalize the barring of military recruiters.

Then... it's not hard to get from there to a clear-cut case of compelled speech. Congress can't withhold unrelated funds from someone based on a speech "violation".

Are the pro-Solomons generally arguing that law schools don't have a First Amendment right to bar the military, or that withholding research funds doesn't count as "compelling", or that compelled speech is ok in this case for some reason?
11.29.2005 6:41pm
Thorley Winston (mail) (www):
Actually that's the wrong question. The correction question is "does a university have a right to receive federal taxpayer funding?"

The correct answer is obviously "no" and all of the talk about the First Amendment and freedom of association is simply a smokescreen because any university can simply refuse federal funding and continue to set whatever recruitment policy they want.
11.29.2005 6:52pm
Houston Lawyer:
Randal

Did VMI have a free speech right to bar women?
11.29.2005 6:56pm
Andy Freeman (mail):
As far as I can tell, this case turns on exactly one question.

1. Do law schools generally enjoy a First Amendment right (of association) to deny minorities admission?

The answer seems like obviously yes... otherwise Congress could just criminalize the barring of minority students.

Then... it's not hard to get from there to a clear-cut case of compelled speech. Congress can't withhold unrelated funds from someone based on a speech "violation".

Are the pro-Solomons generally arguing that law schools don't have a First Amendment right to bar minorities, or that withholding research funds doesn't count as "compelling", or that compelled speech is ok in this case for some reason?
11.29.2005 6:58pm
arielc:
How does the Solomon Amendment treat public schools within a University system?? Take, for instance, the California University system. If one public university refuses to allow access to military recruiters on campus, and the amendment disqualifies that school from obtaining federal funding, what happens if the University system receives an appropriation for a program that affects all of it's member schools. Basically, I'm asking, how far does the amendment reach in terms of precluding schools from obtaining funding? Can the school obtain indirect funding from the state University System or does the university system have to dogmaticallly preclude the school from receiving any of the ancillary benefits of funding from appropriations to the University system?
11.29.2005 7:24pm
randal (mail):
Andy -

The comparison between JAG recruiters and minority students fails because of the conflict between equal protection and free speech, which, in the case of suspect classes (which includes minorities but not JAG recruiters), is resolved in favor of equal protection. In other cases it's resolved in favor of free speech.
11.29.2005 7:33pm
Cornellian (mail):
Actually, the point about the market is relevant - law schools are a cartel that gets its market power from state action - the requirement of graduation from an ABA accredited law school to sit for the bar. One might therefore see the Solomon Amendment as a market-opening effort to expand student access to employers and employer access to students. Because of the ABA-accreditation barrier to entry, there can't be the kind of market competition that Cornellian is anxious to see.

U.S. law schools are not a cartel - do you know what a cartel is? Nor is graduation from an ABA accredited law school a requirement to sit for the bar in many states. Nor does the scope of job opportunities for grads have any connection to "opening the market." Everyone the JAG seeks to recruit at an ABA lawschool is already about to graduate from an ABA lawschool so the "barrier" to becoming a lawyer, even assuming it might be one in other circumstances, isn't a barrier here.
11.29.2005 8:01pm
Andy Freeman (mail):
Equal protection protects folks in wheelchairs? (I didn't specify the minority distinction.) How about active-duty military applicants? Methodists? Adulterers? Ex-cons?
11.29.2005 8:02pm
Cornellian (mail):
Actually that's the wrong question. The correction question is "does a university have a right to receive federal taxpayer funding?"

The correct answer is obviously "no" and all of the talk about the First Amendment and freedom of association is simply a smokescreen because any university can simply refuse federal funding and continue to set whatever recruitment policy they want.


Interesting view. So Congress could pass a law making your eligibility for FDIC deposit insurance and home interest tax deductions contingent on your not criticizing any incumbent member of the House or Senate who is running for relection? You don't have a right to FDIC deposit insurance or tax deductions so you can simply do without those and criticize all you like, right?
11.29.2005 8:04pm
Cornellian (mail):
The point about the market is irrelevant. Whether the Solomon Amendment is unconstitutional has nothing to do with whether the Solomon Amendment is sound policy. Besides, staffing the military is a traditional and constitutional government function that has always operated outside of the free market.

Well I was dealing with the policy, not the constitutionality. For private universities, I would think they have the same right to exclude JAG recruiters that the Boy Scouts had to exclude gay people. To what extent the Feds can use their spending powers to infringe that right is not so clear.
11.29.2005 8:10pm
Cornellian (mail):
I find objections based upon the "Don't ask, Don't tell" policy of the military to be absurd. This is not so much military policy as the law of the land duly enacted by Congress and signed by President Clinton. If the schools are so incensed by this law, shouldn't they reject all federal government funding or ban on-campus recruiting by all federal governmental agencies? Also, if nondiscrimination is their main concern, why do they allow recruiting by firms that practice affirmative action? I predict a 9-0 vote upholding the Solomon Amendment.

The military actively supports the policy. If the military opposed the policy, and went along with it simply because Congress enacted it into law, there'd probably be considerably less opposition from law schools to allowing JAG recruiters to use law school property to recruit their students.

As to whether they should reject all federal government funding, why? Is there some reason why the Dept. of Agriculture should be held reponsible?

You asked another poster whether VMI had the free spech right to exclude women. I'd broaden that to ask whether VMI had any constiutional right to exclude women (free speech or otherwise). Do they?
11.29.2005 8:15pm
DavidBernstein (mail):
Randal,

Where did you get the idea that the equal protection clause overcomes the first amendment so long as the rights of "suspect classes" are involved? Among other things, the clause only protects individuals from state action.
11.29.2005 8:25pm
randal (mail):
Andy -

Exactly. You're entering the realm of "compelled speech is ok in this case for some reason". The government's task will be to show that the policy has a reasonable chance of success of delivering on a legitimate goal, and show that the goal couldn't be met in a less restrictive way.

From some of the government's past statements, it appears that the goal is largely to hamper law schools from making the political statement they're making. That's not a legitimate goal. It's also hard to imagine that a recruiting goal can only be met by compelling speech.

I would take the pro-Solomon arguments more seriously if they focused on persuading me that no other means could improve military recruiting as effectively.
11.29.2005 8:32pm
Wintermute (www):
I like to think the draft is unconstitutional involuntary servitude, but of course my view will not prevail in all these emergencies we get coached into.

In the final analysis, it's about who has the most power to say what is most politically correct. In this case, it's the federal government.

The place to seek the reverse outcome is in the minds of the people and their representatives in office. Personally, I regret that relentness pressure to extend gay rights beyond decriminalization has hurt the Democratic Party and distorted electoral politics so much.
11.29.2005 9:05pm
Neal R. (mail):
Are conditional spending issues still controlled by South Dakota v. Dole (U.S. 1987)? I remember learning in law school that under S.D. v. Dole, there were five limits on Congress's use of its spending power: (1) the congressional purpose must be the "general welfare" -- understood to be national in scope; (2) conditions on the receipt of funds must be "unambiguous"; (3) the conditions must not be "unrelated" to the "federal interest in particular policies or programs"; (4) the conditions must not conflict with any other constitutional provision; and (5) at some point "pressure turns into coercion" and may violate the 10th amendment anti-commandeering principle.

If this is the proper analytic framework, then Dean Polsby has missed the boat somewhat in his first post, and Professor Eskridge is right to focus on the First Amendment rights of law schools, although I'm not sure I find his analysis persuasive.
11.29.2005 9:11pm
randal (mail):
David Bernstein just posted a comparison between the Solomon Amendment and Title IX, but with no comment link so here's a comment.

Title IX's goal is to ensure access to higher education for historically disadvantaged groups. On its face, that's going to conflict with institutions' speech rights. But it was deemed a legitimate goal, with obviously no less restrictive way of implementing.

Here, the putative goal is to improve military recruitment. That doesn't obviously confict with institutions' speech rights, so we demand the government to produce a rationale for why it must.
11.29.2005 9:18pm
Neal R. (mail):
I'm no Con Law expert, but are conditional spending issues still controlled by South Dakota v. Dole (U.S. 1987)? I remember learning in law school that under S.D. v. Dole there were five limits on Congress's use of its spending power: (1) the congressional purpose must be the "general welfare" -- understood to be national in scope; (2) conditions on the receipt of funds must be "unambiguous"; (3) the conditions must not be "unrelated" to the "federal interest in particular policies or programs"; (4) the exercise of the spending power must not conflict with any other constitutional provision; and (5) at some point "pressure turns into coercion" and may violate the 10th amendment anti-commandeering principle.

If this is the proper analytic framework, then it seems to me Dean Polsby has missed the boat somewhat in his first post, and Professor Eskridge is right to focus on the First Amendment rights of law schools (although I'm not sure I find his analysis persuasive).
11.29.2005 9:19pm
Andy Morriss (mail):
Polsby is right on point with Rotsker v. Goldberg - this case is an easy one if you read that opinion. Congress gets the maximum deference possible in creating a means of staffing the military, including the right to create schemes that discriminate on the basis of eligibility for military service. Under Don't Ask, Don't Tell, thus far upheld by the courts, the military can exclude open homosexuals. Congress's decision to require equal access (with a carefully tailored pacifist exemption) gets that deference and the government wins.

With respect to first amendment rights - state law schools (some of which belong to FAIR) are state agencies. Since when do they have first amendment rights?

Non-state law schools which are part of universities have been instructed by their universities (who are not parties to the litigation) to comply with Solomon. (This is according to the affidavits of the people at schools willing to identify themselves in the litigation.) Law schools have no legal existence independent of the organizations which own them (e.g. universities for the most part) - which can be seen from the fact that law schools cannot hire without university approval, cannot confer degrees without university approval, etc. Since no university is identified as a member of FAIR, we can assume none are plaintiffs. (Even independent schools like NYLS have boards who make decisions for the legal entity). As much as the faculty might like to think they are in charge, they aren't actually in charge of the law school - and the claim that faculty (even assuming that the faculty are the law school) have a First Amendment interest in who participates in on campus interviewing programs is very weak. Even the AAUP Red Book doesn't include administrative matters like that in the area where the faculty should be given deference. Thus the First Amendment claim is, I think, vastly overstated.

Interestingly, at a Boston College program on the case in which I participated a couple of weeks ago, there were numerous criticisms of the FAIR case on a variety of grounds by people very sympathetic to the overall goals of FAIR. The reliance on Dale, for example, had several people quite upset as did the possibility that this case will produce an opinion that ends up undermining Title IX and perhaps other antidiscrimination laws. (The CATO amicus brief in support of the law schools sets out a good basis for such an opinion.)
11.29.2005 9:57pm
DJB:
I look forward to conservatives insisting that the market will deal with this problem by making schools that admit JAG recruiters more attractive to students (because they provide a better range of job opportunities) thus putting competitive pressure on schools that exclude JAG recruiters to change their policies

Obviously market forces aren't going to fix a problem when all the parties involved are on the government dole. If you cut off all the government funding and forced universities to actually provide useful and cost-effective education to students, then we'd see what the proper solution was.

But in any case, you are making the foolish mistake of assuming that all conservatives favor economic liberalism. Many don't (just as not all liberals favor leftist economics) -- southern voters in particular have been historically right-wing on social issues and left-wing on economic ones, which is why Republicans need to hammer on social issues to keep them in the tent.
11.29.2005 10:12pm
DJB:
The military actively supports the policy. If the military opposed the policy, and went along with it simply because Congress enacted it into law, there'd probably be considerably less opposition from law schools

Do you realize that you just said that law schools would be more supportive of the military if the military refused to obey its civilian government masters? A law professor who actually gave a rat's ass about the Constitution should be MORE unwilling to support a military that opposed the civilian government, not less. Whatever right you may think people have to serve in the military, it pales in comparison to their right to live in a nation where the military is entirely subservient to the civilian populace.
11.29.2005 10:18pm
arbitraryaardvark (mail) (www):
Re the history of strings attached - in 1962, Kennedy repealed a policy that required students and professors getting federal aid to swear that they weren't communists. I'm guessing there have been strings attached about as long as there have been federal funds for education.
11.29.2005 10:41pm
ANM (mail):
"Polsby is right on point with Rotsker v. Goldberg - this case is an easy one if you read that opinion. Congress gets the maximum deference possible in creating a means of staffing the military, including the right to create schemes that discriminate on the basis of eligibility for military service. Under Don't Ask, Don't Tell, thus far upheld by the courts, the military can exclude open homosexuals. Congress's decision to require equal access (with a carefully tailored pacifist exemption) gets that deference and the government wins. "
Another, even more interesting example: In Griggs v. Duke, the court ruled that companies could not use employment measures, such as an IQ test that caused a "disparate impact" on given groups, unless they were proven to be "reasonably related." Most businesses do not bother to validate. And yet the army requires that you score at least 30th percentile on their IQ test, prohibiting a substantial proportion of minorities from entering the armed forces. http://en.wikipedia.org/wiki/Griggs_v._Duke_Power_Co.

Education is a state issue, per the 10th amendment.

The whole issue is soaking with hypocrisy and inconsistency, as Professor Bernstein points out. The plaintiffs want freedoms selectively applied, to their benefit of course. The universities involved however, are so bloated, so kept afloat, by federal funding that they will not, cannot, take the principled stand of Hillsdale and Grove City colleges.
Perhaps the case will lay a stronger precedent for the freedom of association, enabling a future attack on antidiscrimination laws. But I am not so optimistic.
11.29.2005 10:41pm
Cornellian (mail):
The military actively supports the policy. If the military opposed the policy, and went along with it simply because Congress enacted it into law, there'd probably be considerably less opposition from law schools

Do you realize that you just said that law schools would be more supportive of the military if the military refused to obey its civilian government masters? A law professor who actually gave a rat's ass about the Constitution should be MORE unwilling to support a military that opposed the civilian government, not less. Whatever right you may think people have to serve in the military, it pales in comparison to their right to live in a nation where the military is entirely subservient to the civilian populace.


Do you realize that my post doesn't say that? I said "opposed the policy AND went along with it..." The military is asked for its opinion all the time on policies that affect it (logically enough). Congress will obviously want to know the military's position before enacting a policy in this area and there's nothing inappropriate in the military saying the policy is a lousy idea. That's an entirely different thing from saying the military should disobey the policy once it's enacted into law.

I might add in passing that the policy isn't nearly as much of a bright line as it appears. The rate at which the military discharges homosexual soldiers always goes down during conflicts, and rises again afterwards. Logically it should be the reverse if you believe the military's stated justification for it but the reality is the last thing they need at the moment is to lose any more people, so they'll drag their feet on discharges until the Iraq conflict is over, all the while pretending that "don't ask don't tell" is uniformly and consistently applied.
11.29.2005 11:19pm
Justin (mail):
Bernstein's post is inapt in ways that would fail a first year law student (I'm beginning to notice a trend with Bernstein's posts, tragically). The whole point of Eskridge's post, including the (un)offending portion, was that the prime focus of the military's position was SPEECH, not access. Title IX (which is flawed in many ways) has NOTHING to do with speech, It is operable for schools like Wellsley and Mount Holyoke. It does not matter upon what grounds the discriminated gender is denied access, unlike Haverford which can deny access based on simply disliking the military in general. The rest of the diatribe is simply irrelevant, completely off topic.
11.30.2005 12:14am
arielc:
For What it's worth, here's a link to an analysis of the Rumsfeld v. FAIR case completed by the Congressional Research Service on November 15, 2005.

http://www.opencrs.com/rpts/RL33150_20051115.pdf
11.30.2005 12:33am
Sebastian Holsclaw (mail) (www):
Amazing that it is a colorable argument that federal funding cannot be tied to allowing JAG officers to recruit on a first amendment basis when actual political speech is outlawed McCain-Feingold. Talk about protecting the borders cases while letting the core value go to hell.
11.30.2005 3:08am
David M. Nieporent (www):
Randal,

The problem with your posts is that the initial premise is rather weak: that this is an issue of "compelled speech" at all. Obviously opponents of the Solomon Amendment want to make that the focus of their argument, but the claim that allowing recruiters on campus is "speech" is a rather tenuous one.

But I want to know how many people who think that it is unconstitutional "compelled speech" think the Supreme Court got it wrong in Bob Jones. (Leave aside the statutory interpretation issue, where the Supreme Court clearly got it wrong.) When I hear a FAIR member stand up for Bob Jones' right to discriminate, then I'll believe this is about principle rather than outcome.
11.30.2005 4:02am
Cornellian (mail):
The problem with your posts is that the initial premise is rather weak: that this is an issue of "compelled speech" at all. Obviously opponents of the Solomon Amendment want to make that the focus of their argument, but the claim that allowing recruiters on campus is "speech" is a rather tenuous one.

Allowing recruiters on campus was the original, minimalist approach. Now however, the government's position is that the Solomon amendment mandates "equal access" which entails a great deal more than just allowing recruiters on campus. The full range of administrative support that law school career offices provide to their students for other employers must be provided on behalf of the military as well, such as emailing information about the military to students, providing interview rooms, scheduling interviews, putting up posters etc. It's a great deal more than just allowing them to set foot on the property.
11.30.2005 7:09am
vccommentor (mail):
Justin,

Surely you can't mean that it has "nothing to do with speech" when a university that, as a matter of ideology, does not want to keep track of the race and sex of all of its applicants and students? And there was a 1st Circuit dissent back in the 80s stating that even Title's IX's sports programs regulations interfere with the First Amendment. Directly forcing a university to follow federal rules with regard to how it runs its admissions policies is a much more intrusive speech regulation than is merely requiring them to permit the military on to campus to recruit. The analogy would be if the government let the university run whatever admissions program it wanted, but then required the university to allow government agencies that engage in "reverse discrimination" (affirmative action) on campus to recruit.
11.30.2005 8:37am
Andy Freeman (mail):
> Do law schools generally enjoy a First Amendment right (of association) to deny military recruiters access to the school's grounds and rosters?

Note that there's no compelled speech by any entity and no individual is forced to associate with the recruiters. The organization's "association" is temporary geographic proximity, which is almost a textbook example of de minimis.
11.30.2005 10:14am
Cornellian (mail):
Do law schools generally enjoy a First Amendment right (of association) to deny military recruiters access to the school's grounds and rosters?

Note that there's no compelled speech by any entity and no individual is forced to associate with the recruiters. The organization's "association" is temporary geographic proximity, which is almost a textbook example of de minimis.


You wouldn't consider forcing law school staff to distribute military "no gays allowed" recruiting materials through mailboxes the school maintains on its property for communication with students to be compelled speech? Would it matter if the materials said "no blacks allowed?" "no Communists?"
11.30.2005 1:19pm
David M. Nieporent (www):
Would it matter if the materials said "no blacks allowed?"

I ask you that exact question. Would it matter? Is it "speech" to refuse access to blacks? Could the government deny federal funding to schools that won't allow blacks access (or "equal access") to campus? Or, in other words, I repeat: did the government violate Bob Jones' First Amendment rights?
11.30.2005 3:32pm
mjg283:
If universities receiving federal funds refused to accept minorities or women, they would be, if memory serves, in violation of Title VI and Title IX of the Civil Rights Act. The same sort of "compelled speech" applies in those circumstances as it does with the Solomon Amendment. So if you knock out the Solomon Amendment, other civil rights statutes are now in jeopardy.
11.30.2005 5:13pm
randal (mail):
Everybody who doesn't own a gun gets an annual $300 tax deduction from the Brady Fund.
12.1.2005 3:04am
randal (mail):
The organization's "association" is temporary geographic proximity, which is almost a textbook example of de minimis.

No, that's what it was until the amendment got amended. Now it's deliver flyers, schedule interviews, maintain files, blah blah blah. When it was just access, the law schools were ok with it.
12.1.2005 3:45am
randal (mail):
I want to know how many people who think that it is unconstitutional "compelled speech" think the Supreme Court got it wrong in Bob Jones. (Leave aside the statutory interpretation issue, where the Supreme Court clearly got it wrong.) When I hear a FAIR member stand up for Bob Jones' right to discriminate, then I'll believe this is about principle rather than outcome.

Ok ok I know RUDE, three posts in a row, but I want to address this (again) 'cause people keep sayng "Bob Jones" for some reason.

Look. If y'all made the case that, yes you know you're trampling some free speech, but you have no alternative because the Solomon amendment is super effective in delivering on a really important goal, and you looked at alternatives but there were none, then ok. Instead, the government's position is nothing more than "Do what I say cause I said."
12.1.2005 3:59am
Cornellian (mail):
Are we going to get comments enabled on Bernstein's post about Congress's responsibility for this? This post is already so far down it's practically disappeared over the horizon and lots of people here obviously would have something to say on the issue of the responsibility of Congress versus the military for "Don't Ask Don't Tell."
12.1.2005 7:52am
Andy Freeman (mail):
> You wouldn't consider forcing law school staff to distribute military "no gays allowed" recruiting materials through mailboxes the school maintains on its property for communication with students to be compelled speech?

It's not compelled speech by said staff.

Compelled speech by said staff would be something like the required "this advert was paid for by {name}" that is required on much political speech. That's compelling political speech. Distributing flyers with someone else's name on it doesn't even reach that low threshold.
12.1.2005 10:48am
kobayashimaru:
Dick King,

You write that Alpha Phi Omega is a part of the boy scouts, and so should also be removed from campus. Just wanted to clear up that APO is not part of the Boy Scouts--it was formed by Boy Scouts, and tends to support them, but is not in any way affiliated with their organizing body. Alpha Phi Omega also does not discriminate against gays--I had two very good gay friends in my chapter.
12.1.2005 10:56am
David M. Nieporent (www):
Randal,

I don't think that was responsive to my statement. I am trying to explore the notion that this is a "speech" question at all. Opponents (*) of the Solomon Amendment take that for granted, and I want to clarify that.

You seem to be implying that, yes, tying the behavior of universities to federal funding is "trampling" on speech, but it was okay to "trample" on Bob Jones U's speech because, well, Bob Jones' ideas were bad.



(*) I should clarify that when I've been saying "Opponents of the Solomon Amendment," I mean "People who think it unconstitutional," not people who disapprove of it.
12.1.2005 1:38pm
Dick King:
kobayashimaru, I stand corrected. My membership in APO dates back to 1969-71, and things may have been different then. [This was before I knew that the boy scouts had an anti-gay policy]

I probably would not have resigned or advocated that they be removed from the campus for that, because they do good work.

-dk
12.1.2005 2:46pm
randal (mail):
You seem to be implying that, yes, tying the behavior of universities to federal funding is "trampling" on speech, but it was okay to "trample" on Bob Jones U's speech because, well, Bob Jones' ideas were bad.

Not because they were bad, but because they stood in the way of the goal of antidiscrimination. The law schools' exercise of their right to associate doesn't fundamentally thwart military recruitment, or at least that case hasn't been made. (And saying that the goal of Solomon is antidiscrimination with respect to JAG recruiters is ridiculous.)
12.1.2005 7:16pm
Andy Freeman (mail):
It's nice to see that anti-discrimination is the highest goal.

FWIW, there are other ways to advance that goal without hosing Bob Jones.

It's becoming more and more clear that the only principle involved is money.
12.2.2005 9:59am
DosPeros (mail):
As one who worked for the Air Force JAG Corp, I think this opinion is unfortunate and will be overturned by the Supreme Court.

As President of the Federalist Society, the university of the law school that I attended, tried to force me to put a homosexual anti-discrimation clause in our student constitution.

The Federalist Society, neither at the national or at any student chapters that I know of, discriminates against homosexuals. In fact, I'm sure that a significant number of homosexuals are in the Federalist Society. I put in our constitution that the Student Chapter of the Federalist Society was fully committed to the constitutional mandates of Boy Scouts v. Dale. They, the student government, said — "Way to get in line" and "recognized" the Federalist Society. This is ironic, to me anyway, because FAIR relies heavily on Dale in its Expressive Association analysis.

FAIR based its argument on the uncostitutional "conditions" doctrine of First Amendment analysis, which says, "the Government 'may not deny a benefit to a person on a basis that infringes his constiutionally protected interests-especially, his interest in freedom of speech."

Well, that is great! That means neither can public universities or public law schools. The Christian Legal Society and the Federalist Society just became much stronger on law school campuses. And both organizations should invite the armed services on campus and have JAG week. Is this unforseen or forseen consequences? How does the door not swing both ways (pun kind of intended)?
12.6.2005 12:56am