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.
Eskridge's post is now up. I understand each person will be doing one a day for the rest of the week.
Very Much Precedented Tying of Federal Aid to Colleges to Obeying Government Rules:
In his first post in his ACS debate on the Solomon Amendment, with GMU Dean Dan Polsby, Bill Eskridge refers to the Solomon Amendment as "an unprecedented tying of massive amounts of federal grants to the renunciation of a dissenting stance by academic institutions." It's certainly not unprecedented, as the Solomon Amendment is directly descended from laws "tying massive amount of federal grants to the renunciation of a dissenting stance by academic institutions," that is, institutions that objected to the race and sex bean-counting required by federal regulators starting in the 1970s.
So, I interrupt my blogging break to review the history of the Solomon Amendment, from an op-ed that was in turn based mainly on text from my book "You Can't Say That!" (no self-plagiarism here!):
The same liberal "civil rights" activists who now oppose the Solomon Amendment, adopted in 1996, had supported previous efforts to ensure that the federal government could use its financial power to force private universities to obey draconian antidiscrimination rules. In other words, the troubling consequences of government regulation of universities' internal affairs have come full circle.
First, a little history. The origins of federal interference with university policy lie in Title VI of the 1964 Civil Rights Act, which bans racial discrimination at federally funded universities, and the Title IX Amendment of 1972, which extended the ban to sex discrimination. Grove City College, a Christian liberal arts school in Pennsylvania, tried to preserve its independence by refusing all federal funding. Grove City even declined to participate in federal student aid programs that required the college's direct involvement.
But those efforts to retain independence were not enough to stave off federal bureaucrats motivated by extremist antidiscrimination ideology. In 1977, the Office for Civil Rights of the old Department of Health, Education, and Welfare (HEW) claimed that while Grove City declined direct federal funding, it received indirect funding by accepting tuition payments subsidized by a federal program, even though students applied for this program without any input from or participation by the school. Therefore, according to HEW, Grove City was bound by Title IX.
Grove City's then-president, Charles MacKenzie, refused to sign the assurance of compliance. But he did affirm that the school had "no argument with the spirit or intent of Title IX's support of nondiscrimination." The college had accepted women since its founding in 1876 and had never been accused of sex discrimination. But MacKenzie believed that if Grove City agreed to comply with Title IX, the result would be increased costs to the college, greater expenses for its students, threats to the Christian nature of the college, mandated affirmative action preferences based on race and sex, and a general loss of independence. HEW at least partially validated his suspicions when it later informed Grove City that colleges subject to Title IX must maintain "detailed records of all student and employee applications, enrollments, academic records, personnel files, suspensions, hirings, firings, promotions, denial of promotions, etc. — all broken down by race, age, sex, and ethnic origin — and submit them upon demand to federal authorities."
The college eventually filed a federal lawsuit against HEW, claiming that it was not a federally supported institution subject to Title IX and that, in any event, it had a First Amendment academic freedom right to refuse to comply with the government's intrusive demands in the absence of any allegation that the college had practiced discrimination. However, the Supreme Court disagreed. It held that Title IX applied to Grove City because its students received financial aid from the federal government. The Court also ruled that the First Amendment didn't apply because Grove City could evade Title IX by forbidding its students to receive federal financial aid.
The Court tried to limit the damage its holding inflicted on the institutional independence of colleges by ruling that only Grove City's financial aid office was subject to Title IX because only that part of the university was a recipient of federal aid. The rest of the institution, however, could maintain its autonomy from the federal government.
The Court's attempt to preserve some institutional autonomy for universities from antidiscrimination laws caused uproar among liberal antidiscrimination activists. They persuaded Congress to pass the "Civil Rights Restoration Act." This law ensured that if a university receives any federal funds at all, including tuition payments from students who receive federal aid, as in Grove City's case, all educational programs at that university are subject to Title IX.
The Solomon Amendment is modeled after the Civil Rights Restoration Act's interpretation of Title IX.
Liberal professors generally cheered the government on when it was coercing small anti-statist colleges like Hillsdale and Grove City (both of which now decline federal funds and forbid their students from accepting federal funds!) And according to the Boston Globe, some professors are dubious about the Solomon Amendment case, lest there be some small insignificant college somewhere that will use a favorable precedent to defy federal regulators.
Congress's Responsibility for "Don't Ask, Don't Tell":
With the caveat that, as I've mentioned before, I dislike the Solomon Amendment, and think it is in fact "coercive" to deprive some schools of their lifeblood federal funding while granting such funds to their competitors, Dean Polsby raises a good point in his latest Solomon Amendment debate post on the ACS blog. The military's anti-gay "policy" is actually a statute that the military is obligated to follow. If the law schools want to express their displeasure at the "Don't Ask, Don't Tell" law, it would arguably make more sense to cut off recruiting ties with Congress (and the Executive branch, given that the president signed the law, and the judiciary, which has upheld the law). It would also be a much more courageous and costly act on the part of the elite law schools, which send very few students to the military, but many to other parts of the government.
Of course, one could argue that it would be foolish to boycott all three branches of government, considering that much of what they do has nothing to do with "Don't Ask, Don't Tell." But consider that not only is Don't Ask Don't Tell a law, not simply a "policy," but that the military is engaged in several shooting wars right now, one can also question how much weight one should give "Don't Ask Don't Tell" in the broader scheme of things, even if one thinks it's a terrible, invidious policy. A hypothetical: would it have been morally appropriate for law schools to ban military recruiters during World War II because of military segregation and discrimination, or would it have been morally superior to cooperate with the military and provide needed talent for WWII, while still urging the political branches to change the military's policies (as Truman eventually did in 1948)? If any of the leading advocates of boycotting military recruiters have seriously grappled with the moral implications of doing so in the midst of major military conflict with truly awful enemies, I haven't noticed it (indeed, I asked a dean of a leading law school, in response to a letter urging my support of the FAIR litigation, about whether the fact that this is wartime gave him any pause at all, and did not receive a response). My colleague Eugene Kontorovich, unlike me a Solomon Amendment supporter, has written about related legal ethics issues. To return to a theme I've focused on elsewhere, antidiscrimination concerns are certainly important, but they do not always trump other competing values.
UPDATE: My GMU colleague Ilya Somin tells me that when people criticized Joe Louis for
recruiting blacks to join the then-segregated military during WWII, he responded along the lines of "the things wrong with the US won't be made better by letting Hitler win."
FURTHER UPDATE: Louis's actual remark
: "[t]here may be a whole lot wrong with America, but there's nothing that Hitler can fix." Ilya adds: "The analogy is apt because just as Hitler's views on race were a whole lot worse than those of the WWII military, our current enemies' position on homosexuality is a whole lot worse than that of the Pentagon."
ONE MORE UPDATE: U. Minnesota professor Dale Carpenter, in the Minnesota Daily: "In my view, that’s [the wars in Afghanistan and Iraq] a red herring. This is an ideological hostility on the part of Congress toward universities that want to protect gay people from discrimination." (1) I don't see how it's a red herring to point out that law schools wish to obstruct military recruiting in the middle of wartime. (2) And why take it out on the military recruiters, who have no choice but to obey Congress's order? Why not refuse cooperation with Congress? Not to pick on Minnesota, because this sort of thing is going on at all the law schools that are up in arms about the Solomon Amendment, but Senator Norm Coleman, presumably a Solomon (and Don't Ask, Don't Tell?) supporter, was the commencement speaker at Minnesota last year, yet military recruiters, adhering to legislation passed by Coleman's cohorts, shouldn't be allowed to use the law school's bulletin boards? (Lest there be any doubt, I'm not being facetious here; I very much respect the opposition to "Don't Ask, Don't Tell," but don't understand why it's okay to honor the likes of Coleman but not okay to even tolerate military recruiters in wartime.)
Prof. Dale Carpenter, via email, responds to my last post on the Solomon Amendment controversy:
Unfortunately, the student reporter's story may have left you with a misimpression about the question I was responding to. He had asked me whether the law schools were pressing to exclude military recruiters _as a way to express their opposition to the war in Iraq_. I responded, "No, that's a red herring," and that the law schools were trying to do this for years before the Iraq war began. Of course the ongoing war is relevant to whether military recruiters should actually be excluded from recruitment at a school.
I then added that I do not believe Congress's passage of the Solomon Amenment has anything genuinely to do with national security or recruitment needs. That has been asserted repeatedly but I've never seen evidence to back it up. The military has ways to recruit law students interested in the JAG Corps (including through tuition help), for example, and law students who are interested in serving are of course free to contact the military. I have never heard it suggested that the military is even close to being short on bright young lawyers.
We continually seem to graduate more lawyers than we have good jobs for. In fact, it's my understanding that the DoD initially opposed the Solomon Amendment as "unnecessary" and possibly harmful to defense research.
By the way, I do disagree with Dean Polsby's (and I take it your) point that the appropriate way for law schools to protest the Solomon Amendment would be to target Congress and/or federal judges and/or the Executive Branch. The schools are protesting on-campus discriminatory recruitment by the military, not on-campus discriminatory recruitment by the three federal branches. A protest aimed at the body that directly discriminates seems more narrowly tailored to me. If federal judges started refusing to hire gay clerks, or if Congress declared a policy of refusing to hire gay staffers, and both of these bodies then demanded to use law school facilities to do their recruiting, we'd have a very different issue.
Moreover, the military is not absolved of responsibility for DADT. Military leaders testified in unison for barring service by gay people back in 1993. The Joint Chiefs came down hard for the ban. Without their strong backing, it would probably not be the law today. Even now, if military leaders took a stand against the policy it might well be reversed.
The Solomon Amendment case raises many difficult issues beyond what I've discussed here. But I did want to address these fairly narrow questions right now.
I'm running out of town (which is why comments aren't open), but one quick response: it's true that the military is engaging in discriminatory recruiting, but they are doing it on orders from Congress and the President, as upheld by the judiciary. It's not as if the JAG officers (who, as I understand it, tend to be among the most liberal members of the judiciary) can simply decline to enforce the law. To greet them with protests, catcalls, etc. (not that Dale has done this, but it's been done) and other forms of disrespect seems to miss the point, as does refusing to cooperate with them while cooperating with, and honoring, those that established the objectionable rule. As for the Joint Chiefs' responsibility, I don't know what their views are today, but military leaders objected to desegregation and to women in the military, but they also strictly obeyed their civilian bosses when they were told to.