Is the Solomon Amendment Constitutional?
The Supreme Court Looks at the Law that Prohibits Federal Aid If a School Refuses to Permit Military Recruiters on Campus

By MARCI HAMILTON
hamilton02@aol.com
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Thursday, May. 05, 2005

The Solomon Amendment is a federal law that penalizes schools that do not permit military recruiters on campus, by cutting them off from receiving federal funds. As I discussed in a prior column, some law schools and law professors have objected strenuously to this law.

These schools and professor say they do not want on their campuses any hiring organization that discriminates on the basis of sexual orientation. Thus, they seek to preclude the military from recruiting on campus because of its "don't ask, don't tell" policy regarding homosexuality. (The basis for the "don't ask, don't tell" policy is a federal regulation, which is itself predicated on a federal law prohibiting homosexuals from serving in the military.) But they don't want to lose federal funds if they do bar the military. Hence, they are challenging the constitutionality of the Solomon Amendment.

Now, their challenge has come before the U.S. Supreme Court. The name of the case is Rumsfeld v. Forum for Academic and Institutional Reform (FAIR). However, the constitutional claim before the Court is not based on a theory of sexual orientation discrimination. Instead, it is based on a theory that the Solomon Amendment violates the First Amendment's Free Speech Clause.

The Supreme Court granted review this week. But the case will not be decided until the Court's next Term, which begins this October.

The answer the Court should - and very probably will - reach is clear: There is no First Amendment violation at all here. The lower federal court - the U.S. Court of Appeals for the Third Circuit - found such a violation, based on tenuous logic, but the U.S. Supreme Court is unlikely to make the same mistake. Indeed, the Court may have taken the case precisely to correct the Third Circuit's error.

The Constitutional Issue: Looking Past Slogans, to Substance

Madison Avenue has nothing on the law schools and law professors who have brought this case. They have named themselves FAIR (the Forum for Academic and Institutional Rights, Inc.). And their spokesperson, Joshua Rosenkrantz, has called the government "bigots" for maintaining the "don't ask, don't tell" policy.

So if the law schools and professors had their way, this case would be FAIR against the bigots. With that opposition, it's pretty clear who should win - so if slogans made constitutional law, the result in this case would be foreordained: A victory for FAIR. But fortunately, constitutional law is based on analysis, not slogans. And here, close analysis favors the government, not FAIR.

No One Will Confuse the Military's Message with the Law Schools' Message

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.

But the assertion that anyone would confuse the military's message with the host school's message is ludicrous. It is well-known - and statistics and anecdotes bear out -- that law schools and their faculty are overwhelmingly dominated by liberals. Indeed, the legal academy is famously a haven for liberal orthodoxy and fundamentalism. And one of liberals' well-known values is equality regardless of sexual orientation.

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 idea that anyone will think recruiters' views are the schools' views is therefore ridiculous. Sweatshop law firms recruit on campuses. Does anyone think the law schools, by allowing them to do so, send a message that young adults should have no life? Big firms that defend polluters, cigarette makers, defense contractors, and the like --- the "bad guys" under the liberal agenda - recruit on campus, too. Yet their presence in the law school waters down the school's liberal orthodoxy not an iota, and the contrast between their views and those of the school and its professors - who speak out in class every day they teach - is plain to all.

Because the Amendment doesn't gag anyone, the reality is that any student who signs up for such interviews has to be thick-skinned, determined, or both. As I discussed in a previous column, I watched students at NYU Law School literally run the gauntlet to simply interview with the military (let alone take such a job). Thus, it is laughable to claim - as FAIR does, and must -- that the military's policies could, or would, be ascribed to law schools' dominant powers.

This Suit Is a Political Tactic - Not a Genuine First Amendment Case

While we're being real, let's face this reality: This suit is all about the will to power of political majorities in the law schools. They don't like the "don't ask, don't tell" policy - and therefore, they don't like the Solomon Amendment (because God forbid that they should sacrifice free federal money in order to honor their principles).

But attempts to challenge "don't ask, don't tell" directly in court have failed. So what better way for law schools and their liberal faculty members to try to undermine the policy - and to make their point - than to make it difficult for their students to be recruited by the military? Whether there might be students who disagree with this policy balance, or simply are looking for a job to support themselves, is utterly irrelevant to the members of FAIR; after all, the professors already have their legal jobs - and, probably, tenure.

The Reality Is That Law Schools Allow Discriminatory Recruiting All the Time

Moreover, there is a richly ironic element to the position being taken by the members of FAIR. They try to single out the military, claiming it is the only discriminatory employer they allow to enter their building. But again, the reality is to the contrary.

Top law firms in New York and elsewhere still count precious few women and minority partners. Women who have babies routinely receive less favorable treatment than their male counterparts: Pregnancy leaves often delay partnership consideration. Women on the "mommy track" are often offered "of counsel" jobs that leave them compensated far less than their male counterparts - sometimes, they are salaried (modestly) while males who entered the firm the same year, and perform at the same level, enjoy an equity share. The number of women who have been ushered out of the top legal position is legion.

Law firms would not dream of excluding these de facto discriminators from their hiring schedules, though. Why? As long as the firms keep making the schools' students partners (at least, the white males among them), the schools can look forward to donations from wealthy, and hopefully generous, alumni. Those who serve their country in the JAG Corps are not, typically, filling law schools' (or their own) coffers.

Now, law schools might tell you that these firms say they do not discriminate on the basis of gender or race. But so does the federal government's "don't ask, don't tell" policy, which is sexual-orientation blind. So again, if FAIR claims it is targeting discriminatory employers, there is much hypocrisy involved.

Meanwhile, among all the different legal employers liberals may consider objectionable, the government has the best argument of all for recruiting on campus: Now more than ever, the military must be able to recruit the best and the brightest, because those are the minds that are needed in these difficult times.

And yes, the military needs to recruit liberal and moderate lawyers, too - not just diehard conservatives with enough moxie to seek them out even if they are banned from campus.

Do those liberals who decried the Bush Administration torture memos want more of the same from military lawyers? If not, it is up to them to encourage law students to become military (and intelligence) counsel.

Do liberals want accountability for the Abu Ghraib scandal? If so, they ought to encourage law students, regardless of politics, who are brave enough to look up the chain of command, when it comes to assigning responsibility.

Court Doctrine Compels Rejection of FAIR's Free Speech Claims

Unfortunately for FAIR, it's not just common sense and national policy that militate against their free speech claim; Supreme Court precedents do, too.

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.

The Supreme Court Has Already Rejected the "Unconstitutional Conditions" Argument

Readers may wonder: How in the world, given this doctrine, did the Third Circuit rule in favor of FAIR?

The answer is that it dragged out a hoary old doctrine that the U.S. Supreme Court has already rejected in a much more speech-restrictive context.

The "unconstitutional conditions" doctrine - not much used since the 1970s -- says that the government cannot condition its benefits on a diminution in First Amendment rights. FAIR argued (as one would expect, because liberal law professors love this argument) - and the Third Circuit agreed - that the law created an "unconstitutional condition," because it took away federal funds if the law schools did not open their interview rooms to military recruiters.

But this argument runs directly into the Supreme Court's 1991 holding in Rust v. Sullivan. There, the Court held that the federal government could condition federal medical funding on the requirement that a doctor not mention the option of abortion to pregnant women. Unlike FAIR, then, Rust was a case about gagging speakers. The doctor literally could not talk to the patient about a subject within the doctor's medical expertise. Yet even in this more extreme situation, the Court still rejected the unconstitutional condition argument, and held in favor of the government.

Some think that Rust was undermined by the Court's 2001 ruling in Legal Services Corp v. Velazquez, but that is questionable. The condition there was a requirement that lawyers paid by the government not raise arguments that might hurt the government's position. Again, as in Rust - but not in FAIR - a gag was involved. And - unlike in Rust or FAIR - the Sixth Amendment right to a fair trial was also imperiled.

In short, on-point Supreme Court precedent very strongly suggests the military ought to win this case - and FAIR ought to lose.

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.

Of course, liberal law schools and their professors publicly disavow any negative attitude toward the military. But their hyper-legalistic arguments regarding the Solomon Amendment betray a more troubling truth.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on First Amendment and other constitutional issues can be found on this site. Her email address is hamilton02@aol.com. Professor Hamilton's book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), will be published this fall.

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