The Yale doctrine revisited
In the Solomon Amendment, Congress conditioned the acceptance by educational institutions of federal funds on nondiscriminatory treatment of military recruiters on campus. I first heard about the case challenging the constitutionality of the Solomon Amendment over parent's day weekend at Yale in the fall of 2003. In "Yale v. U.S. Military, Round 2," I sought to convey my contempt for the lawsuit and its advocates, whom I had observed in action that weekend. I think that column stands up pretty well, even though the lawsuit has succeeded beyond my worst nightmares to this point. With any luck, Judge Roberts will be on board when the baloney meets the grinder in the Supreme Court next term.
Last week NRO posted a column on the merits of the lawsuit: "The wisdom of Solomon?" NR intern Anthony Paletta called George Mason Univesity Law School Dean Daniel Polsby -- the coauthor of an amicus brief supporting the law -- for comment. Dean Polsby seems to share my views regarding the demerits of the case and its academic proponents:
"This is not a free speech case — it's a simple case of the spending clause," he tells NRO. "Congress has the right to condition federal funds on certain minimal objectives." As the brief states: "the Solomon Amendment thus is a perfectly ordinary contractual condition; no different from any that might be attached to a gift or bequest to an academic institution."To expand on the hypocrisy Dean Polsby notes, let's zoom in on the scene at Yale. The October 14, 2003 Yale Daily News story on the controversy added some interesting quotes: "Law schools turn on legal heat in JAG debate." You can hear the money talking (Yale's $350 million in federal funding that induced its compliance with the Solomon Amendment that year) as then-law school dean Anthony Kronman states: "We would never put at risk the overwhelmingly large financial interests of the University in federal funding. We have a point of principle to defend, but we will not defend this -- at the expense of programs vital to the University and the world at large."Polsby views the lawsuit as fundamentally hypocritical: "The schools are angry at Congress. They say we're not going to allow the military on campus. We like government money so much though, that we'll sue to get it."
Polsby says the foundation of the appeals-court decision, in Boy Scouts of America v. Dale, is erroneous. The ruling equates law schools with private organizations, as "expressive institutions." "Law schools aren't expressive institutions, and no one is telling them how to select their members or message," he says. "Expressive associations have a lot of privileges that no law school asserts. A law school isn't a country club." The brief notes that "if the government requires an expressive entity to accept someone as a member or spokesman, the First Amendment might thereby be offended." It asserts that providing access and resources to military recruiters is far from this.
To Polsby, the case is the latest in a long string of quarrels reflecting higher education's hostility towards the military...
Taking your money for the good of the world -- it's the Yale Doctrine!
