An Unsolomonic decision

I learned about the FAIR lawsuit against the Solomon Amendment last year while visiting Yale over Parents’ Weekend. These are the notes I posted on Power Line at the time about the facts and arguments that relate to yesterday’s Third Circuit decision enjoining enforcement of the Solomon Amendment requiring federally funded educational institutions to allow military recruiters on campus. Rereading these notes, it seemed to me that they facilitate an understanding of what’s happening here, in case you had any doubt.
The Third Circuit’s decision is based on the supposed First Amendment associational rights of universities — according to the Third Circuit, the Solomon Amendment interferes with the universities’ rights not to associate themselves with organizations of which they disapprove.
You know, it’s like when the Boy Scouts desired not to have an “out” homosexual such as James Dale as a troop leader; the Supreme Court held that requiring the Boy Scouts to accept Dale as a troop leader infringed the Scouts’ First Amendment rights.
Applying the Supreme Court decision in the Dale case, the Third Circuit holds that Congress can’t constitutionally compel the universities to allow military recruiters on campus. This is what is known in the profession as “legal reasoning.”
In any event, here are my notes from last year just after the FAIR lawsuit was commenced.
1. The Yale Daily News story that originally drew my attention to this phenomenon has some striking details. The Yale Law School was festooned in black to protest the arrival of JAG recruiter Brian Whitaker. According to the story, “Only one student was scheduled to meet with [Navy Judge Advocate General recuiter Brian] Whitaker during the visit [to the Yale law school], but that student cancelled the interview, Law School recruiting assistant Amanda Hilton said.” So not a single law student visited with Whitaker about possible service as a JAG lawyer. One wonders how such uniformity could be achieved.
One needn’t read much further in the story to find the answer. “Over 500 students signed a petition saying they would not interview with JAG recruiters on campus. The petition hung inside the Law School Thursday as part of the protest display, which included the black and camouflage wall hangings [protesting Whitaker’s recruiting visit].” The total 2002-03 law school student body included 594 students, many of whom came from countries other than the United States. Given the Stakhanovite imperative at work with the public display of the petition, how many students could conceivably have felt free to express a contrary view in any manner?
Considering that the armed services of the United States are actively defending the students and faculty of Yale Law School while the country is at war, one might have thought that the school would find it in its heart to extend its hospitality, if not its gratitude, to Whitaker. Think again.
2. The Solomon Amendment has been the law of the land since 1995. Under the amendment, specified federal agencies are prohibited from providing federal funds or contracts to universities that prevent access to campus by military recruiters.
The Defense Department only recently appears to have threatened enforcement of the amendment, and the law schools only recently have begun to comply. One would think that law schools would comply with the law short of such threats — hey, they’re law schools. Think again.
3. What about the legal merits of the argument that the Solomon Amendment unconstitutionally infringes on the academic freedom of law schools and law students? Mark Tushnet is Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center and president of the Association of American Law Schools; he is one of the most prominent left-wing law professors in the country. In an extremely interesting memorandum to his AALS colleagues, Tushnet explored some of the difficulties of the legal arguments against the Solomon amendment in explaining why he voted against the AALS initiating or joining litigation against it.
As Tushnet explained, among the reasons supporting his vote is the fact that the non-discrimination policies adopted by the law schools and at issue in the litigation were themselves required by the AALS, the organization that serves as legal education’s principal representative to the federal government:

I believe that there is some tension between the Association’s assertion of a member school’s right of academic freedom and the fact that many member schools adopted the policies at issue under the Solomon Amendment in response to the Association’s interpretation of its non-discrimination policy. There’s no technical problem here, but only an awkwardness: Putting it bluntly (as the defendants in litigation would), how can the Association assert that its member schools have made academic freedom judgments when the policies at issue were adopted because of pressure from the Association, not because of member schools’ own reflection on their missions?

Click here for the association’s 1997 memorandum to member law schools on excused noncompliance with the associaton’s non-discrimination requirements in light of the Solomon amendment.
4. Tushnet’s point above is couched in terms of reflection on litigation strategy rather than the merits of the lawsuit per se. His discussion of the merits tactfully suggests that they are slim:

The litigation would have to take on two difficult issues, the scope of Congress’s spending power (an unconstitutional conditions point), and the degree to which the courts should defer to Congress’s judgments in matters involving the military forces. It is not impossible to succeed in those challenges, but the arguments are difficult and complex, and it was not clear to me that it would be a valuable expenditure of AALS officers’ time to supervise the development of such arguments.
My own judgment was that we would do better by our gay, lesbian, and bisexual students to continue to encourage member schools to engage in ameliorative programming and other efforts in response to the effects of the Solomon Amendment.

Do you suppose the professors at Yale Law School know something that Tushnet doesn’t?
5. Despite the damning evaluation of a knowledgeable scholar like Tushnet, it is difficult to find a candid discussion of the merits of the issues raised by the blowhards at Yale and the plaintiffs in the New Jersey lawsuit. A guest column at the FindLaw legal site constitutes a rare exception. Former Air Force Lt. Col. Raymond Swenson dispatches the express and implicit arguments against the Solomon Amendment in roughly 1000 pithy words: “Wielding the First Amendment as a sword against the JAG Corps.”
Swenson is devastating on the legal issues, but he is perhaps most trenchant on the animus underlying the lawsuit:

Don’t believe this controversy is really about “don’t ask, don’t tell.” Instead, it’s about a longstanding animosity. Since the Vietnam War, this animosity by professors toward the military has continued unabated. It killed ROTC programs on many campuses. It is felt by military officers, such as myself, who have applied to attend law school under military scholarships. And it can be seen in the response to Operation Iraqi Freedom. Even if the military’s “Don’t Ask Don’t Tell” policy were ended, plaintiffs would claim other reasons for banning the JAG. This isn’t a First Amendment case about reforming the military. It’s an anti-First Amendment case based on hatred for the military. As such, it should fail.

6. The October 14, 2003 Yale Daily News story on the JAG controversy adds some interesting quotes: “Law schools turn on legal heat in JAG debate.” You can hear the money talking 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.”
Taking your money for the good of the world — it’s the Yale Doctrine!


Books to read from Power Line