Solomon Amendment Before the Court

So I get a lot of e-mails from people asking me about the Solomon Amendment.

Okay, that was technically a lie. I've never gotten any e-mails asking me that. The only time I've gotten any communication asking about any topic at all was from my brother, who wanted to know what I think about Title IX, and I still haven't answered him. Maybe he'll get the hint sooner or later.

Anyway, back to the Solomon Amendment. The Supreme Court is going to decide whether it's constitutional this fall. The way it works is this. The military says "don't ask, don't tell" when it comes to homosexuality, and excludes openly gay recruits. This angers law schools, who say "fine, but we're not going to let you come to our campus to recruit anyone." So Congress, in 1994 (try to remember who was President that year) passes the Solomon Amendment, which says if the law school won't let military recruiters on campus, the school doesn't get federal funding.

The law schools say the Solomon Amendment violates their free speech rights under the First Amendment. That is utter nonsense. Yes, there is such a thing as compelled speech, and no, government can't compel speech without violating the First Amendment. But no one is so foolish as to assume that every view of every group that conducts an activity on campus is attributable to the school. Tulane has an American Constitution Society (hard-core Lefties) and a Federalist Society (right-wingers and libertarians). What sane person thinks the school is so schizophrenic as to subscribe fully to every view expressed by both groups? In other words, the law schools' argument is dumb because the recruiting activity cannot reasonably be attributed to the school, and therefore there is no compulsion.

"The Bush administration countered in court filings that equal access to campuses for recruiting is necessary to fill the military's legal ranks 'in a time of war.'"

Also dumb. The argument seems to accept that this is compelled speech, and basically turns on whether a state of national emergency justifies violating the First Amendment. That's dumb because whether or not that was the original intent of the amendment, it's certainly not the law now. Any argument that is virtually guaranteed to lose in front of the most important Court is a dumb argument. And the First Amendment also looks to whether there is some other way of achieving the government's purpose without trampling the First Amendment right, and in this case, the government can simply take its lists of students who get federal grants for law school and mail them flyers. Maybe not as effective, but less of a constitutional encroachment. And most importantly, we're not always in a state of war, so the administration's argument has a shelf-life. It's not a wise move to try to get the Court to say the Solomon Amendment is only constitutional for X more years. And by that logic, it certainly wasn't constitutional when enacted in 1994.

So then, having berated both sides, where do I stand? Let me start by changing the facts a little bit. Lawyers, you see, have to be very practiced at manipulating reality for the sake of an argument. Let's suppose that instead of gays, the military excluded blacks. And suppose that law schools wanted to keep recruiters off of campuses, and that Congress passed a law saying "let them on or we stop sending you money." Under this scenario, all reasonable people will agree that the law school has a legitimate objection to the recruiters. It becomes easier to look at the substance of the First Amendment and Congress' spending power, rather than getting caught up on the content of the speech.

So, if I were a law school and an overtly racist military wanted to recruit on my campus, could I exclude them? Certainly, if I'm a private institution; I can do whatever I want with my property. But can I first overtly tell the government to go soak its head, and then assert a constitutional right to get significant amounts of money from that same government? That seems a little like a bratty teen-ager yelling, "I hate you dad! Now give me the car keys!" While I don't think Congress should be spending federal tax dollars on local universities in the first place, I also think Congress can choose to withhold funds at its discretion, and if it ever does something as dumb as a Solomon-like Amendment that operates against black people, electoral retribution will be swift and certain. Where people have a legitimate remedy through the political branches, I always disfavor judicial intervention.

That's my blank-slate conclusion. Once we throw Supreme Court precedent into the mix, everything gets a lot more complicated, in no small part because that precedent is highly contradictory. Let me offer two examples. In Rust v. Sullivan (1991), Congress passed a law that said a doctor who is working for a federally-funded clinic can't discuss abortion with his patients. The Supreme Court upheld the law even though the doctors claimed it infringed their First Amendment rights, because (a) the doctors could talk about abortion all they wanted on their own dime, and (b) government doesn't have to fund anything it doesn't want to fund. By contrast, in Legal Services Corp. v. Velazquez (2001) Congress gave money to lawyers doing free work for welfare recipients, but only on the condition that the lawyers didn't challenge the constitutionality of the welfare statutes. The lawyers were free to make any other arguments in support of their clients, just not that one. And the Court said Congress couldn't do that.

What's the difference? Beats me. But as a matter of precedent, Velazquez is followed more often than Rust.

One more case. The case of Rosenberger v. Rector and Visitors of University of Virginia (1995) involved a Christian group on a university campus. They published a newspaper with Christian-slanted editorials, and they applied to the University for funding. The University denied them, saying they wouldn't fund any publication with any religious discussion at all, although they funded publications by all other secular student groups. The Supreme Court said the University couldn't deny the funds because it was viewpoint discrimination. This case doesn't exactly cover the Solomon Amendments question, because it's a case of the university using its own money to fund student groups, rather than asking for federal money and then refusing access to a certain group. This case can either help or hurt the schools. On the one hand, it might mean that yes, government (as represented by the school) can be forced to pay for things it doesn't want to support. On the other hand, it might mean that schools can't discriminate against military recruiters any more than it can discriminate against Christians.

So the case law is tangled and could go anywhere, which usually means the outcome will depend on whether O'Connor thinks she's a liberal or a conservative on the day of the hearing.

All that said, let me reduce the issue to a serious of short questions that I feel sum things up.

1. Does a private school have to let members of (list group here) on its campus? No.
2. Does Congress have to fund you while you're speaking out against Congress? No.
3. Should the military be forced to let gays in? Maybe you should ask someone in the military.
4. Is O'Connor really that wishy-washy? Oh yes.
5. Should my tax dollars (here we're pretending for a moment that I have income) be used to fund law professors who are actively working to undermine our nation's military in a time of war? What do you think?