Solomon's Choice -- Or Hobson's?

For those following the Solomon Amendment litigation, which reaches the Supreme Court next week, this article in the Boston Globe is both detailed and interesting.  It deals with the question whether the plaintiffs' arguments against the application of the Solomon Amendment to law schools could undermine the general applicability of Title VI and Title IX, thus lending some perspective on why some amici -- notably the amicus brief penned by Walter Dellinger of O'Melveny & Myers -- have focused more narrowly on the proper reading of the statute itself than on broader constitutional arguments like those raised by the plaintiffs. 

The kicker quote, courtesy of Professor Tribe, notes, in his words, that ''[s]ome universities like Bob Jones or some analog of Bob Jones on the gender side might well be able to generate a First Amendment argument. . . . And I would hate to see a world in which that kind of First Amendment claim became a general blueprint for avoiding the neutral across-the-board application of antidiscrimination rules."  For those of us who cautiously question whether the Bob Jones case, and perhaps Runyon v. McCrary, were rightly decided, of course, Tribe's nightmare may be more of a prospect.  But Tribe, and the article, are certainly right that many natural sympathizers with the plaintiffs in the Solomon Amendment litigation should be careful what they wish for.

A quote from Kathleen Sullivan of Stanford Law School is also worth singling out.  Sullivan argues, in part, that the statute fails to show a close fit between the military's goal of recruiting and the penalties exacted by the statute because, to quote the article's characterization of her argument, "the military's insistence on equal access-and the ensuing 'political theater' in the form of campus protests and picket lines-actually works against the goal of successful recruitment, discouraging law students from interviewing with the military at all.  'The military was just at Stanford," she said recently, ''and no one showed up to interview because of the protests.'"  I'm not sure how many people she thinks would have showed up Stanford anyway, but whatever else her argument does, surely it also wreaks havoc with the compelled speech and freedom of association claims raised by the plaintiffs: if protests are available, plentiful, and effective, how can anyone reasonably argue that the military's presence on campus will be mistaken for an endorsement of the military by the law schools?  I also find striking the extent to which Sullivan's argument carries with it undertones of an implicit endorsement of the heckler's veto.  But all this should be expected by now, perhaps, in litigation which seems to have thrown a lot of the debaters out of step with arguments they would make in other contexts.