Defending the Solomon Amendment

Yesterday, as Washington waited breathlessly for Patrick Fitzgerald’s news conference, I attended the monthly luncheon of the Washington Chapter of the Federalist Society. The speaker was Daniel Polsby, Dean of George Mason Law School. Dean Polsby, as entertaining a speaker as you’ll ever hear, is one of the authors of an amicus brief in a Supreme Court case that will test the constitutionality of the Solomon Amendment.

The Solomon Amendment conditions the receipt by universities of federal funds on their allowing military recruiters access to university students on campus. Elite law schools, deans, and professors have strenuously resisted the Solomon Amendment. They claim that forcing them to choose between losing federal money and countenancing appearances by representatives a bigoted (against gays) military violates their right to freedom of association. In 2003 they commenced litigation challenging the constitutionality of the Solomon Amendment under the auspices of the Forum for Academic and Institutional Rights (FAIR). The Third Circuit Court of Appeals sided with “FAIR” and held the Solomon Amendment unconstitutional. As I mentioned, the Supreme Court will review that decision this term and, in my opinion, probably reverse it. Scott has written extensively about the case, most recently here.

Here is the Polsby amicus (co-authored by professors Nelson Lund and Joseph Zengerle of George Mason and private attorneys Andrew McBride, William Consovey, and Seth Wood of the Wiley, Rein & Fielding law firm). The brief is something of a blog legend — Todd Zywicki, another George Mason law professor, used his space at the Volokh Conspiracy to successfully “recruit” other law professors to sign the brief.

One of the many great points Dean Polsby made about the Solomon Amendment yesterday was that the law schools challenging the Amendment seem motivated more by anti-military sentiment than by sympathy for gay rights (the suit assumes the legality of the underlying “don’t ask, don’t tell” policy). Polsby, a professor for decades, notes that the liberal professoriate was defending its sensibilities against the military at a time when gay rights were a non-issue.

If, as I expect, the Supreme Court upholds the Solomon Amendment, both sets of lofty motives (anti-military animus and pro-gay rights sentiment) will likely be insufficient to induce liberal law schools to stand on principle and turn down federal money.


Books to read from Power Line