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Monday, May 02, 2005

The Solomon Amendment

The Supreme Court today granted cert. in the Solomon Amendment case, taking an appeal from a Third Circuit opinion enjoining the application of the Amendment, which imposes significant funding restrictions on schools that bar on-campus military recruiters on anti-discrimination grounds.  General details are here.  This was a cert-worthy case if ever there was one.

I have an extensive section on this case in my article "Grutter's First Amendment," forthcoming in the Boston College Law Review.  For an earlier version of the discussion, see here; the final version contains a revised and extended version of that discussion, so don't take the version there as my final word.  Let me give a capsule version of my thoughts on the matter.  I have taken a scholarly (note that this is not a synonym for "brilliant") view of the matter rather than an advocate's view, and my thoughts on the case are somewhat nuanced (not a synonym for "confused" -- I hope). 

Bear with me -- this is another long post.

1) The focus of my paper is on the First Amendment implications of the Grutter/Gratz cases (which permitted affirmative action done in the manner of Michigan's law school, but not as conducted by its undergraduate admissions), and I argue that if the Court takes Grutter seriously for its First Amendment implications, it ought to give serious weight to the plaintiffs' arguments against the Solomon Amendment.  Grutter suggested that because universities occupy a special niche in our constitutional tradition, they ought to enjoy substantial autonomy in shaping their own academic missions; where they have done so, those decisions are entitled to substantial deference.  In Grutter itself, that deference was weighty enough to help overcome what is supposed to be a strict level of constitutional scrutiny.  In the Solomon Amendment litigation, plaintiffs (including some law schools) argue that they have made precisely this determination: that permitting military recruiters on campus interferes with a fundamental academic mission of non-discrimination.  If the Court takes Grutter seriously, it ought to give substantial weight to the plaintiffs' arguments; they might still lose, but it ought to be a far closer case. 

2) Of course, the Court's First Amendment language in Grutter might have been a mere makeweight, in which case it wouldn't play much of a role here.  But the central thrust of my paper is that there are sound reasons to take Grutter's First Amendment language seriously.  Despite the tendency of the Court to attempt to craft generally applicable First Amendment doctrine that does not depend on the nature of the institution in question, there are sound reasons to recognize a special constitutional role for a variety of institutions that play a central role in the First Amendment -- universities, the press, religious institutions, and others.  We ought to give greater consideration to the unique role those institutions play, and permit them substantial autonomy to act, and to self-regulate, within their roughly defined traditional sphere of activity.

3) To the extent I am arguing for an institutional autonomy approach to academic freedom, claims to Grutter deference, as I call it, should be limited to those bodies that are entitled to make such claims.  Any reliance on these arguments by individual faculty members, students, etc., would be misplaced.  The courts should carefully police the borders of standing when arguments for deference based on instititutional autonomy are asserted.

4) To the extent that plaintiffs, or plaintiffs' supporters in the legal academy, have argued for this kind of deference, whether under Grutter or under the Boy Scouts v. Dale case, they ought to recognize the implications of their argument.  Opponents of the Solomon Amendment have been startlingly quick to rely on Dale, which permitted the Boy Scouts to bar a gay Scout leader from a position of responsiblity and which was roundly criticized by progressive legal scholars, in pressing the argument against the Solomon Amendment.  If the argument for Grutter or Dale deference is right, a school that wishes for reasons of academic mission to impose a policy of discrimination, rather than non-discrimination, also ought to be entitled to substantial deference, provided that policy is the product of a genuine academic decision.  If the Third Circuit opinion is upheld, then that would provide a sound basis, for instance, to reconsider the Bob Jones ruling and permit a private university to discriminate on the basis of race without losing favorable tax status.  Part of the lesson of Grutter (and of Dale), I think, is: be careful what you wish for.

5) My argument here is about what the courts should do.  Because of the special niche certain institutions occupy in our constitutional tradition, I argue they ought to be entitled to substantial deference at the hands of the courts.  But that is an argument about the nature and level of review that courts should apply, not about the underlying soundness of the policy under attack.  Outside the courts, I do not think some of the arguments raised by the plaintiffs in the Solomon Amendment case are as worthy of respect.  I question their argument that barring on-campus military recruitment is necessary to serve the law schools' academic missions for at least two reasons.  First, these non-discrimination policies are not simply organic to the law schools' academic decision-making; they are the substantial result of pressure from above, since the AALS enforces its own non-discrimination policies through hard and soft pressures on member schools.  Second, I question the assertion that on-campus recruiting has much to do with academic policy.  I have taught at three law schools now, and attended three others, and I have barely seen on-campus recruiters; they show up, use a room to interview, and leave, without even nominal involvement or interest on the part of any faculty members that I have seen.  As far as I can tell, on-campus recruiting is about as closely related to academic decision-making, as say, parking policies.  Again, the question is whether the courts are free to second-guess a school's description of its academic decision-making process, and there are good reasons to constrain them in doing so.  But we non-judges need not be so credulous in evaluating the plaintiffs' claims. 

6) Finally, although I share a fairly common revulsion at the don't ask, don't tell policy, I believe it is that policy that ought to be attacked, and not necessarily the presence of on-campus recruiters.  Leaving aside the presence of many would-be military lawyers on campus, the views of the veterans' community on campus, and the sheer difference of opinion on the underlying military policy, I believe that it is better to create possibilities for a more ideologically diverse body of military recruits than to reinforce an already widening gulf between the civilian and military population.  Diane Mazur, a professor at the University of Florida Law School, has written usefully on this point.  On the other hand, from an academic freedom point of view I think the very heavy use of the government-funding stick represented by the Solomon Amendment ought to be of great concern to educators -- even those educators who wish to permit on-campus military recruiting.

How should the Court decide the case, then?  My prediction is that the Court will overturn the Third Circuit, and my view is that on the basis of current law, it should do so.  My concern is with how it should do so.  I think the academic freedom issues raised by this litigation are serious, and I believe that where conflicts between government policy and what I call "First Amendment institutions" are involved, there are strong reasons to favor a policy of substantial deference to the academic decisions made by these institutions.  I believe there are sound reasons to take Grutter's First Amendment language seriously, and even if those reasons are insufficient to overcome the government's interests in this case, the Court ought to genuinely grapple with those arguments rather than simply ignore its own language.  I hope the amicus community (and yes, I am available...) ought to file some briefs that don't necessarily take sides on the controversy, but that urge the Court to give some shape and content to its academic freedom jurisprudence and lend some additional vigor to its statements in Grutter.            

Posted by Paul Horwitz on May 2, 2005 at 03:20 PM in Law and Politics | Permalink

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» Solomon to the Supreme Court from The Debate Link
The Supreme Court has granted cert to determine whether or not the Solomon amendment (which strips federal funding from colleges which don't allow military recruiters on-campus to protest "don't ask, don't tell") is unconstitutional. The 3rd Circuit ... [Read More]

Tracked on May 2, 2005 9:56:21 PM

» SOLOMON AMENDMENT from Begging To Differ
The Supreme Court will decide the Constitutionality of the Solomon Amendment, a federal law that withholds federal funds from colleges that prevent the military from recruiting on campus. SCOTUSBlog has a brief history of the amendment. Paul Horwitz at... [Read More]

Tracked on May 2, 2005 11:54:35 PM

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