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December 05, 2004

Solomon Amendment Hypocrisy

The Solomon Amendment was recently struck down by the courts:

In a 2 to 1 ruling, the U.S. Court of Appeals for the 3rd Circuit in Philadelphia blocked the government from enforcing a law known as the Solomon Amendment, which punishes universities that refuse to allow military recruiters on campus. The law was originally passed by Congress in 1996 but was not actively enforced before the beginning of President Bush's administration.
The court ruled that the Solomon Amendment violated the free-speech rights of schools that restricted on-campus recruiting in response to the military's ban on gays. By threatening to withdraw federal funds from schools that refused to cooperate with military recruiters, the court wrote, the government was compelling them "to express a message that is incompatible with their educational objectives."

Well, not quite. What Congress sought was for law schools to allow military recruiters to speak to their students. In other words, it was the law schools which sought to prevent speech between employers they disapprove of and their students. The plaintiffs in this suit assert their "right" to protest discrimination: by discriminating against an employer who is in full compliance with the law. Apparently, 3 years of exclusive access to students' minds is not enough - the Society of American Law Teachers wants to control their future employment choices as well.

Of course, SALT wouldn't put it quite that way:

The suit, captioned Forum for Academic and Institutional Rights, Inc. & Society of American Law Teachers, et al. v. Rumsfeld, et al., alleges that the Solomon Amendment is a blatant violation of the First Amendment rights of academic institutions and faculties to decide what lessons to teach their students and how to teach those lessons.

These days, the 'learning environment' extends well beyond the classroom - even an employment interview is a 'teachable moment':

“It’s censorship, plain and simple,” said Prof. Kent Greenfield, a Boston College law professor who recently founded lead plaintiff Forum for Academic and Institutional Rights, Inc., an association of law schools committed to fighting for academic freedom.
“Whether Congress had prohibited non-discrimination policies outright, or just punished those who applied them with the loss of all federal monies, the result is equally coercive and equally offensive to the First Amendment.”

Strangely, law faculty don't find the exercise of Congressional spending power "coercive and offensive" when used in the service of causes they agree with, like forcing military schools to admit women.

“It is not enough for a law school to tell its students it is against discrimination,” added Prof. Michael Rooke-Ley, a visiting law professor at Seattle University, who is co-president of the Society of American Law Teachers, the other lead plaintiff. “If a law school hopes to have any credibility with its students—if it wants to teach them about justice and principle—it has to walk the walk, too. That’s what these non-discrimination policies are about.” SALT co-president Prof. Paula C. Johnson of Syracuse University College of Law agreed, adding, “The only way to attract a diverse student body and ensure that they contribute to a robust marketplace of ideas is to assure them they are all equal in our eyes and that we will not abet anyone who would treat any of them as second class citizens.”

It is left to lesser minds than Ms. Johnson's to contemplate exactly how "robust" a "marketplace of ideas" can be, if it allows only one side of the debate to be heard; nor how effective law school graduates will be in defending others, if their critical thinking and argumentation skills are so weak that they can't make simple decisions for themselves. One wonders how a school could put its stamp of approval on students it so clearly doesn't trust.

John Leo comments,

The schools offer a free-speech defense, but in reality they are suppressing free speech themselves by silencing others and preventing freedom of association by banning contact between students and recruiters. It is the rough equivalent of a bookstore's refusing to sell books with which it disagrees. The store may have the right to do so, but it's a tacky tactic that shows little respect for allowing people to make their own choices.
Law schools that respected students would allow military recruiters to speak. They would encourage those who disagree with armed forces policy to picket, boycott, or argue for an end to "don't ask, don't tell." Instead, the schools are teaching future lawyers that if you disagree with anyone, it's best to ban or censor. Unfortunately, the campuses are fond of imposing their own version of contested cultural norms, instead of encouraging free argument over what those norms should be.

With all due respect for Mr. Leo, that approach presupposes a belief in the free exchange of ideas as well as a modicum of faith that, having met the requirements for graduation, law students might actually be capable of making reasoned and informed choices. SALT apparently believes it has the right to receive federal funds while discriminating against the federal government for refusing to meet any arbitrary extra-legal condition they wish to impose.

But 'academic freedom'*, like freedom of the press, trumps all other freedoms. So much so that SALT believes it is best defended by preventing speech and limiting free choice.

*i.e., the freedom of academicians to supress dissenting views

UPDATE: The Miami Herald disagrees. Via How Appealing.

Posted by Cassandra at December 5, 2004 05:24 PM

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Rust v. Sullivan, a Supreme Court case in 1991, held (as I recall) that doctors who take federal funds could be prohibited from counseling and talking about abortion. Abortion is after all a "right" according the US Supreme Court (as opposed to that very unenlightened document the US Constitution). So if that can be upheld under the spending power, why can't this law?

And never mind the fact that the bar is aimed at the US military, which makes the case that much worse.

Posted by: KJ at December 6, 2004 08:44 AM

My college has been very open to differing views. Our graduates include wacky liberals and staunch convervatives. Our graduates even include many military people. In fact, two recent graduates, including the valedictorian (earning such honors for the second time) and the saluditorian, served in the Navy and Air Force National Guard during Vietnam. Which many people did not know. So please do not presume to think that my college is among the plaintiffs in this lawsuit.

Posted by: Dean, Electoral College at December 6, 2004 08:47 AM

This is one of those issues I could probably argue either side of, using several different arguements for each.

As a state school (as opposed to a federal school) it has no right to federal dollars. Thus, if it wants the money from the feds, it must adhere to the feds rules. It's no different than if my alma mater wants my money, certain things must be true and remain to be true.

But this also assumes these are private entities, which they are not.

Since the constitution makes the distinction between what the gov't can do and what private (non-gov't) entities can do, (I can censor, my business can censor, but the gov't can't) is a governmental reward/punishment system (which must be legislated) a gov't interference in the rights of private (non-gov't) entities? Some would say it is.

Of course the ultimate librarian solution is to remove federal and state funding of universities completely and the problem goes away.

Posted by: Masked Menace at December 6, 2004 11:35 AM

Menace, the federal government generously offered to remove the source of the problem :)

The schools weren't in favor of that option...

Posted by: Cassandra at December 6, 2004 01:21 PM

Allow me to be more precise.

Remove gov't funding from all schools, for all reasons, for all time.

Of course, I lean more on the former scenario than the latter since I don't view the funding as force but as an option.

Posted by: Masked Menace at December 6, 2004 01:54 PM

I know - I was just being a smart aleck, since I couldn't think of anything witty to say.

Posted by: Cassandra at December 6, 2004 02:22 PM

Smart alecky wit makes my day.

At the abstraction, this issue is about as clear as mud. My federalist tendencies have always caused me to believe that it was wrong to allow Congress to regulate indirectly through the spending clause (ie, the bribery clause) that which it would be prohibited from regulating directly.

For example, in Dole v. S.D., South Dakota (where the drinking age was 18 or 19) challenged a funding law that took away a portion of federal highway funds if the state did not raise the drinking age to 21. The constitution gives states the right to regulate all matters involving alcohol. [Aside: this is also used to force states to set DUI limits downward and lots and lots of other things you couldn't even imagine.] In a 5-4 decision, Renquist and the liberals sided with Congress saying that the spending was within Congresses power and it could put strings on it, even if those strings went where Congress could not go directly.

I hate that decision -- I think it was wrongly decided. But if Dole (and Rust) are right, then this case seems easy -- the universities should lose. If I am right and Dole v. S.D. is wrong, then it isn't as clear, but there are still other arguments I haven't thought about much -- free speech of the US military in a limited government sponsored forum and others I haven't bothered to think about yet maybe.

I think State universities should be ashamed that they forbid the armed forces from recruiting. I don't give a hoot about the Constitutional issue.

Posted by: KJ at December 6, 2004 02:39 PM


I can see both sides of this one, too, but it still amuses me to point out the intellectually untenable position these captains of logic have adopted.

The point people seem to miss is that the university position is just as coercive in nature (if not in scope) as the exercise of spending power to 'encourage' provision of access to military recruiters.

I agree it's somewhat unsavory to wield withdrawal of fed funds as a club, with which to beat recalcitrant states/entities over the head. On the otter heiny, what in the helk makes these morons think they should be able to thumb their noses at Congress and still collect money from them? It ain't that kind of party. Want my money? Play ball, or take a hike.

I'm simply pointing out the irony (nothing new on either side) of whining about coercion when you applauded the use of the same power in a cause you supported.

I still don't see where these jokers get the gall to try to 'punish' the military for not adhering to what I already called an 'extra-legal' perceived duty laid on them by universities. Where do they get off trying to dictate employment conditions to employers? More importantly, why should the federal government subsidize law schools that discriminate against any employer that they find ideologically unsound? They are essentially asking to be underwritten as they practice discrimination :)

If you don't think their policy is "coercive", ask yourself why they bother if they don't think it will do any good :) I'd love to hear their answer.

We all know that's not even the real issue - they just oppose the military and will ban them any way they can. This is merely the excuse du jour.

Posted by: Cassandra at December 6, 2004 02:54 PM

The bottom line for me is that Congress has limited powers. Those powers have already been expanded well beyond what the Constitution contemplated. I just don't think Congress should be allowed to regulate with its spending power beyond what it can regulate directly. Of course you can turn down the funds. But consider that because we have Federalized so many things that should be local (like welfare, schools or health care, or non-interstate roads), we have made our federal tax burden quite large. States then have less flexibility to raise taxes. They also have more dependence on the Federal funds. The switch from local government to Federal has limited the State's financial indepedence because nearly all State spending programs are taxed, then funded, by the Federal government. The very system has given Congress more financial power, and thus the spending clause issues are almost impossible to turn down.

Can anyone name a state that refuses to change its law to satisfy a funding mandate? I would love to applaud an example if it exists.

Of course, the best approach is to return to limited government at all levels, but particularly the Federal level. Then the funding doesn't come from the Feds, and the coercion doesn't exist.

Could Congress require State sponsored universities to allow access to military recruiters absent the spending issue? I haven't thought about it. Any thoughts?

Posted by: KJ at December 6, 2004 03:39 PM

KJ, I don't have an example for you, the closest I can come is the state of Wyoming when the feds bribed their way to a national speed limit at 55. After some delay Wyoming finally adopted the speed limit but they seldom enforced it.

I recall my ex-monster in law getting a ticket for excessive fuel consumption once. I think she was doing 85-90 mph.

Posted by: Pile On® at December 6, 2004 04:08 PM

Can they require it? Sure; just pass a law and wait for the courts to strike it down :)

Can they COMPEL, absent the spending power?

Again, probably a moot point. I'd give any such law a shorter lifespan than that of kitten bouncer at a PETA convention.

Posted by: Cassandra at December 6, 2004 04:21 PM

To me it all seems to revolve around whether you see public universities (or public schools for that matter) as extensions of the gov't or private entities.

The Gov't can not censor. It can not punish someone based on ideology. If the university is governmental, then it can not bar the military because of their ideology. It violates the militaries freedom of speech.

Private groups can censor. Private groups can deny admission based on ideology. The Boy Scouts shouldn't be forced to allow gays into leadership positions. Augusta National shouldn't be forced to admit women. If the university is private then the gov't should not be allowed to compell inclusion of the military. It violates the universities freedom of speech.

The problem is that universities are not fully one or the other. The state can forcibly prevent the teaching of theology as violating the establishment clause, but the state can't forcibly prevent a class on why America is evil as it would violate the freedom of speech.

Sometimes it's treated as a gov't entity and sometimes it's treated as a private entity. Depending on the desired outcome, you define it accordingly.

It's always easier to fit the data to the model than the other way around.

Posted by: Masked Menace - Your friendly neighborhood sadistics major at December 6, 2004 05:00 PM

Well Menace, that gets into the point I made earlier: the universities are demanding that the government subsidize (directly or indirectly machts nichts) their formalized discrimination policy not only against government/military, but against any other organization they disapprove of.

Seems to me, they can't do that: force the federal government to be a party to discrimination.

That's precisely why I raised that issue.

If they want to remain wholly private, then I suppose they can do as they please.

They just can't do it on the government's nickel.

Posted by: Cassandra at December 6, 2004 05:11 PM

Thank God I am free to create any message I want with my NEA funded art.

Posted by: KJ at December 6, 2004 05:17 PM

Snark, snark, snark...:)

Posted by: Cassandra at December 6, 2004 05:22 PM

Cass but even that hinges on whether you see the addition of federal funds in this case as discrimination against the military or the withholding of federal funds as discrimination against the university. (It's like saying it's OK to hate haters because hating is bad.)

I come down more on your side of things since if (and that's a big if) the gov't can offer the money, it has the perogative to attach any strings it wants. If you don't like it, take a hike and go wholly private.

But as KJ said, I'm not sure the feds have the proper jurisdiction to offer it at all. It does seem to me to be subverting the constitution.

Posted by: Masked Menace at December 6, 2004 06:04 PM

So much for quid pro quo.

Posted by: RIslander [TypeKey Profile Page] at December 8, 2004 07:48 PM

Exactly where in the Constitution does it guarantee schools federal funding? Funding is awarded at the discretion of Congress: what the Lord giveth, the Lord can sure as shootin' taketh away.

Federal funding is not a constitutional right, nor is the right to deny speech to 3rd parties because you wish to impose a duty upon them which has no foundation in law (i.e., but for your subjective disapproval, the duty DOES NOT EXIST). As I said before, their withholding of access is NO LESS COERCIVE in nature than the government's withholding of funds.

The difference is one of degree, not intent.

Posted by: Cassandra [TypeKey Profile Page] at December 8, 2004 08:50 PM


The government is limited all the time on its ability to place conditions on discretionary matters. It doesn't have to fund a park, or give protest permits, but once it does it cannot deny access to either because of race, religion, and gender (certainly, and perhaps other classifications as well), and as to permits because of the point of view of the speaker.

It is reasonable to suggest at the outset that just because Congress has the discretionary power to fund something or provide something, it is limited in what it can do or what strings it can attach. I again stand by my position on Dole v. S.D. Congress has no power to regulate local DUI or drinking age laws. None. So it is immediately illigitimate to allow it to place strings on money that attempt to coerce states to alter the laws within their sole discretion.

Just like Congress couldn't put strings on the money that required discrimination (b/c it is forbidden by the Constitution), Congress should be allowed to regulate (through strings) in areas where the power to do so is forbidden by the Constitution. Congress should be told, that is none of your concern b/c it is a power reserved to the States - read the 10th Amendment congresspeople.

That is why I think it is important to ask, could Congress require states to allow military speakers on state operated campuses? If the answer is yes, the spending power issue is not even necessary. Again, I want the military to win this case. But I do not want spending power jurisprudence to make this monster any worse.

Posted by: KJ [TypeKey Profile Page] at December 9, 2004 10:07 AM

(*&^% snarky lawyers...

I was afraid you'd come back with that. It is offensive to federalist sensibilities, but on the otter heiny, I see little distinction between making a direct law saying 'thou shalt allow access' and making a law that says "'thou shalt allow access, and we'll withhold federal funds if you don't", except that the latter is better law in that it spells out a clear penalty for non-compliance, thus making it easier to enforce.

On the validity of simply requiring access absent the federal funds penalty, it seems that if the courts just struck down the w/h of federal funds on 1st Amendment grounds, they would strike down any law from Congress requiring access.

So we're back to square one.

Posted by: Cassandra [TypeKey Profile Page] at December 9, 2004 10:26 AM

Could someone please cite for me the passage in the Constitution that allows the federal government to have anything whatsoever to do with education?

Posted by: MrsPurpleRaider at December 9, 2004 09:18 PM

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