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May 09, 2005

Solomon Amendment

Marci Hamilton makes some good points regarding the constitutionality of the Solomon Amendment. In November, the US Court of Appeals for the 3rd Circuit prevented enforcement of the law:

"This is a landmark decision," said Joshua Rosenkranz, lead counsel for a network of 25 law schools and 900 law professors who complained that the Solomon Amendment violated their First Amendment rights. "The court understood that, in a free society, the government cannot co-opt private institutions as government mouthpieces."

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."

At the time, I found that argument both disingenuous and unpersuasive. Universities can and do sponsor a wide variety of speakers, some of whom (Ward Churchill comes to mind) advocate extreme and morally offensive points of view. Allowing or facilitating speech does not constitute official endorsement of a speaker's viewpoint. If it did, robust debate would be impossible as only one side of an argument can be 'endorsed' by an institution at a given moment in time.

This line of reasoning is made even more laughable when you consider that colleges vigorously resist any attempt by students, alumni, or tuition-paying parents to limit their freedom to hire speakers (an affirmative action that requires a school to first choose and then compensate a speaker for expressing a given viewpoint), yet see no hypocrisy in refusing to passively allow access to military recruiters; an act which, especially if compelled by federal law, can in no way be reasonably construed to imply approval or acceptance.

When criticized for hiring former terrorists or rabidly anti-American speakers, academia's first line of defense is inevitably, "But allowing them to express their viewpoint does not constitute endorsement of their views: we are simply encouraging debate." The unspoken corrolaries to this stance (when applied to FAIR's case) are firstly that no debate on the matter of homosexuality will be tolerated, and secondly that legal academicians find criminal acts and terrorism less morally objectionable than the military's legal "don't ask, don't tell" policy.

Strangely, this "we must be free to present alternative viewpoints" argument mysteriously vanishes when it is the university administration that wishes to bar viewpoints it considers wrongheaded. Now two-sided debate is a bad thing. Hamilton comments:

FAIR has had to twist the law to try to turn what really is a discrimination claim - one the federal courts have already rejected - into a free speech claim.

To make this tortuous argument, FAIR must claim that anyone who sees military recruiters on campus will assume the military's policy on homosexuals is endorsed by the school. Therefore, the school, by being forced to host the recruiters (or lose funds), is forced, in effect, to mouth the government's message -which, FAIR argues, violates the First Amendment.

Hamilton points out the flaw in FAIR's argument:

It's important to note what the Solomon Amendment does not do. It does not prohibit on-campus protests of military recruitment. It does not prohibit law professors from arguing, in class, that the military's "don't ask, don't tell" policy is illegal or immoral discrimination - and discouraging students, for this reason, from working for the JAG Corps.

Liberal professors, students, and administrators can post signs, buy billboards, and even wander the halls with bullhorns in case any student dares to have the temerity to think of serving his or her country during a time of war and international instability. They can post "informative" notices, stuff student mailboxes, even run streaming video through the hallways of the law schools. They can also host conferences, teach courses, and establish programs to vindicate their views -- and they need not (indeed, usually will not) invite anyone who disagrees with them.

In short, the Solomon Amendment does not gag the legal academy in any way. It just requires the academy to give the military a seat at the table - among all the other legal employers who may visit, including, say, the ACLU - to meet with students who are interested in interviewing with them.

The premise that merely providing a forum constitutes endorsement is supported neither by academia's own longstanding policies nor by common sense. But Hamilton points out that even longstanding First Amendment principles argue against FAIR's position:

Here's a basic First Amendment principle: The government is limited in its ability to regulate speech, but it may regulate conduct much more easily. And what's going on here, looks like the regulation of conduct to me. The Solomon Amendment simply requires law schools that want to receive federal funds, to supply interview rooms and whatever other access private employers enjoy.

Supplying a room is an action. Providing, say, coffee and doughnuts is also an action. Putting the military recruiter's name on a recruiters' list might be speech, but barely; all it expresses is that the military recruiter is going to be at a certain place at a certain time, willing to talk to interested students.

Suppose, though, for the sake of argument, that actions such as putting recruiters' names on a list distributed to students - or welcoming them for coffee, or unlocking interview rooms - are deemed expressive conduct. Even so, FAIR's claim is strikingly weak.

Under Court precedent, regulation of expressive conduct triggers intermediate scrutiny under the O'Brien test. That test looks to see if the law at issue serves an important government interest, and if alternative avenues of expression are available.

Does the government have a legitimate, important, and even compelling interest to recruit the best and the brightest law students? Of course. Even FAIR concedes this.

Do the law schools have alternative means of expression if they are not permitted to keep their interview room doors locked? Obviously, they do - as I noted above.

Hamilton notes:

Beyond constitutional law, however, the law schools ought to rethink their position as a matter of policy and ethics, as well. The real message they are sending by this lawsuit - and their protests of military recruiting - is an ugly one: They are telling all of us just how much they care about the welfare of this country in difficult times.

I would take it a step farther. Regardless of your opinion on gays in the military, via their untenable position on the Solomon Amendment law schools send a disturbing message about their support of free speech in academia.

If you buy their argument that allowing speech is endorsement, then they have officially endorsed the views and policies of every single employer or speaker they allow on campus, whether invited or not, if that party is allowed to use university facilities. I seriously doubt a law school wishes to take this position, but if they do then their future conduct should be judged on that basis.

Moreover, if you believe the "allowing access = speech" argument and therefore think they are right to ban recuiters, have law schools not just refused to allow free and vigorous debate on this issue? In other words, their support of the First Amendment extends only to those speakers with whom they agree.

This is the argument that should truly concern people on both sides of this issue: law schools and universities will pay to present anti-American viewpoints, even extending to hiring convicted felons who advocate killing innocent people and government figures, in the name of free speech and vigorous debate. Yet they discriminate against law-abiding Americans because they disagree with their ideas.

The law schools' position seems to boil down to this: free speech is a many-splendored thing that must be protected at all costs (unless of course we don't agree with the speaker).

Posted by Cassandra at May 9, 2005 04:56 AM

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