I’m keenly interested in this topic. I really do hope to go to law school next year, and I really expect to be able to do it only with the military’s blessing; if I am mustered out later this year I don’t think I’ll be able to scrape the money together for law school even with a full scholarship, which is not a sure thing. So, since I’m looking at going to law school as a member of the military, I’m keen on seeing how this legal battle unfolds. And since I intend to visit a couple of top law schools, I’m certainly going to be asking what involvement their students and/or professors have with the litigation.
This is a long one. I’m going to continue to cover this issue as there are new developments throughout the year; I don’t know if all briefs have been filed yet in the case but if I can I intend to read and report on them, and I’ll also report on the media reaction the day of the argument, on the argument itself once I get the transcript, and then on the decision once that’s made available. I think it’s important, and if you agree, there’s more after the jump.
From my point of view, it’s much more significant how a campus treats the military than how a campus treats any LGBT students who may be around. All law schools have strict and enforced anti-discrimination policies, and frankly law schools are probably the most progressive institutions in the country when it comes to sexual orientation rights. I cannot possibly empathize with the gay student who claims that his law school’s permitting the military to recruit on campus is an act of discrimination. But how should I feel, as a member of the military, attending a school (like Duke) where one or more professors and/or students are actively and directly involved in a case that defames the military because of its idiot policy on discrimination? For which of us is the campus environment likely to be worse?
In any event, I found some additional information on the case today while I was bored at work (total work done: 9 minutes. So far. I could so be writing a novel right now.) This could weigh heavily on how the matter is decided, and how important said decision really is.
First thing I discovered, starting from this MSNBC article by Tom Curry, is that some of the nation’s largest and most prestigious private law schools do, in fact, get quite a bit of cash from the federal government.
At first, this seems to make a sham out of their entire argument. How can you call yourself a private school when, as with Cornell University, you receive 20% of your budget—over $400 million—from the federal government? Clemson University receives little more than 25% of its budget from the state of South Carolina, but has the guts to call itself a state institution. Cornell starts this entire argument off sitting in the hypocrite’s seat. Yale, Duke, Harvard, and others all included.
But there’s always more to the story. In most (though not all) cases, the Law Schools themselves which are at the heart of this matter do not receive federal funding. The Solomon Amendment requires the government to cut off all federal funding to a university if any of its “subelements” refuses to endorse military recruiting. Thus the $400 mil Cornell is getting is for the most part going to science and engineering research, not to the University’s general budget and certainly not to the law program.
This helps to explain why, when the amendment was first proposed in 1994 by New York Congressman Gerald Solomon, the Department of Defense was opposed to its adoption. The DOD, rather than the National Science Foundation or any other element of the government, is the largest provider of public funds to universities. DARPA, the Defenese Advanced Research Projects Agency, distributes billions of dollars to colleges and universities across the country every year, funding research on everything from breathable fabrics to remote-controlled Humvees. The DOD was understandably concerned that some of their biggest DARPA recipients, including Stanford, Yale, and UCLA, might run afoul of the Solomon Amendment; in the end, the cost to the DOD in lost research would be far more significant than any loss in recruiting they might have been suffering.
Look at it this way: all costs aside, if you had to choose between getting a lawyer and getting a remote-controlled tank, which would you choose?
There’s also the matter of Public Law 92-436. This was passed way back in 1972 and, though rarely invoked, is still public law. It reads in part (S.606), “(a) No part of the funds appropriated pursuant to this or any other Act for the Department of Defense or any of the Armed Forces may be used at any institution of higher learning if the Secretary of Defense or his designee determines that recruiting personnel of any of the Armed Forces of the United States are being barred by the policy of such institution from the premises of the institution…”
So the DOD already had a way of punishing universities that refused to let it recruit on campus. Most universities didn’t refuse to recruit on campus; what’s more, Cornell Law’s insistence on not allowing recruiters at its events didn’t matter as long as Cornell University allowed recruiters on campus elsewhere, which it did and does, as do nearly all other major universities.
Further on, P.L. 92-436 reads, “(b) The prohibition made by subsection (a) of this section as it applies to research and development funds shall not apply if the Secretary of Defense or his designee determines that the expenditure is a continuation or a renewal of a previous program with such institution which is likely to make a significant contribution to the defense effort.”
Again, the previous law already in place allowed that DARPA and other research agencies could still fund research at a blacklisted institution if the research was already ongoing. Solomon forbids this.
I never met the late Rep. Solomon and wouldn’t wish to disparage him, but it seems to me that he wrote his amendment without due consideration of its end result. Of course, it was also passed by a majority of both house of Congress, men and women who evidently didn’t consider the end result, either. P.J. O’Rourke once wrote that the law of unintended consequences is the one piece of legislation Congress always manages to pass. Too true.
Solomon does go some steps further than P.L. 92-436. To begin, it removes the idea of discretion from the decision to withhold funds. Instead it mandates the withholding of funds. Further, it mandates the withholding of all funds, not just DOD funds, meaning that even NSF and other agencies interested in giving money to fund research projects that might use facilities only available at certain universities are unable to fund said research. It is not hard to see that the Amendment, if enforced, could have a crippling effect on a wide variety of important research. The United States is already slipping in scientific research against the rest of the world; the last thing we need is to cripple our scientists further just to support the moral desires of politicians. (Yes, that statement had a double meaning.)
Of course, politicians could not leave bad enough alone with the Solomon Amendment. As originally passed in 1994, Solomon only restricted DOD funding from noncompliant schools. It wasn’t until 1997 that Congress expanded the amendment to ban funding from nearly every government agency (except USDA). DOD language inserted into a 1999 amendment loosened the 1997 strictures, withholding all federal funding from an offending subelement (i.e. law school) but only DOD funding from the parent institution. After 1999, the DOD rewrote its own regulations to allow some exceptions. The key exception allowed that a school would be considered in compliance—according to the DOD—if it provided military recruiters a “degree of access equal to that provided to other recruiters.”
Thus after 1999, only if a school could be shown to be prohibiting or preventing the military from gaining access to students somewhere on campus, would that school be found in violation of Solomon. The DOD did find a handful of institutions in violation; all immediately corrected the violation. As an example of how this worked, Harvard Law allowed the military to recruit only at the offices of its Veterans Association, and did not permit its own career counselors to arrange interviews with military recruiters. The DOD thought this was perfectly acceptable. Other schools would refer students to military recruiters elsewhere on campus but would not allow recruiters to interview or place literature in the Law School campus. I would argue that this is actually quite restrictive, but in fact the DOD enthusiastically supported these measures.
Of course, the 1990s ended. And the new millennium ushered in a new administration and new power in the DOD. After the attacks of September 11th, the new DOD leadership decided that the measures that it had previously allowed were, in fact, in violation of Solomon. It is hard to argue against this: the DOD’s existing policy stated that to be in compliance a school must show that “the degree of access by military recruiters is at least equal in quality and scope to that afforded to other employers.”
Reading the regulation literally, it is had to see how a law school career placement division’s refusal to schedule interviews with recruiters or to allow military recruitment literature alongside other employment literature could possibly be considered in compliance.
Then the DOD went a step further; see the above about politicians not leaving bad enough alone. The DOD announced that if any subelement of a school (almost always a law school) failed to comply with Solomon, it would request that Congress withhold all federal funding from the parent institution as well as the subelement. This counterdicted the DOD’s 1999 policy. DOD continued to narrow its definition of compliance over the next year—although no further than had been recommended by Congress in 1997.
As a member and supporter of the military, if not of the present administration, I find DOD’s argument here very persuasive. In a letter to the University of Southern California Law School, DOD said that anything less than equal treatment for military recruiters “sends the message that employment in the Armed Forces is less honorable or desirable than employment with other organizations.”
And that right there, that is the heart of the problem with this whole Solomon Amendent case. By raising the issue in the first place, prominent people at prominent law schools have made service in the military seem like a negative thing. If you won’t even allow the military on your campus, you’re sending a message that military service is not something your students should consider.
I just took the LSAT. It has a lot of questions on it where you must choose the stronger of two arguments, or say why an argument is strong, or what might make an argument stronger. Since I kicked that test’s ass, I feel I have a bit of authority in discussing which argument is stronger (you may disagree; I don’t care).
Argument 1. The military discriminates against gays. That said, there are some gay people in the military; furthermore, not all straight people in the military [myself included] agree with the military’s policy on discrimination. The law school has a policy that explicitly prevents discrimination against gays. Allowing a recruiter onto campus, where he/she might try to recruit students to serve in the military regardless of their attitude towards the military’s policy, totally invalidates the school’s anti-discrimination policy and is discriminatory against gays. An average person, straight or gay, would view the school as a discriminatory place.
Argument 2. The law school allows employment recruiters on campus. It allows literature to be distributed, offers help setting up employment interviews, and conducts job fairs. However, it does not allow military literature to be distributed, does not set up interviews with military recruiters, and will not allow military recruiters to attend job fairs. An average person, military or civilian, would view the school as being anti-military.
I choose argument 2. What do you know, I got it right, since I didn’t miss any of the questions on that section.
It takes a real stretch of logic to get from allowing military recruiters to talk to your students on your campus to being discriminatory against gays. It’s not much of a stretch at all to see that a school that won’t allow the military on its campus is anti-military. And given that, if a school wants to be anti-military, then by all rights the military ought to cut off funding.
Now, the law schools frame their argument this way. This is taken from a letter written by Stanford Law Dean Kathleen Sullivan earlier this year and posted on Stanford’s email distribution list.
The government may tell the University how to spend its federal dollars, but it may not use the leverage of federal funding to tell the University how to spend its private dollars. For example, if a public broadcaster accepts some public funding and otherwise relies on private donations, the government may not restrict the speech it engages in with private dollars. Similarly, if the University accepts federal funding at the Medical or Engineering schools, the government may not restrict the expressive association of the Law School, which is physically and financially separate from those other units and which does not receive federal funding.
I think Dean Sullivan is on to something, but she’s not going to finish her thought. I’ll do it for her. Since the University is not inherently anti-military, but the law school is, and since the University and Law School are physically and financially separate, then the University should drop its affiliation with the law school, and vice versa. It’s all about freedom of association, baby. Perhaps Stanford U doesn’t want to associate with a crowd of anti-military types. No problem. Cut the cord.
This seems like a fair and equitable solution to me, but then, it doesn’t answer the fundamental question of whether Solomon is Constitutional or not, and no truly anti-military group could resist the chance to defeat the military in open battle, even if just in a courtroom. The Third Circuit, last November, decided that the litigants in this case stood a better than even chance of winning their argument against the government and getting Solomon overturned; they ruled against the government, but stayed their decision until the Supreme Court could have a crack at the case.
Scanning the Third Circuit’s decision (it’s 102 pages long so, no, I haven’t read the whole thing), it seems that the law schools and their supporters may have the stronger case. Quoting Dean Sullivan again,
The government may offer financial inducement to the University to comply with federal policies inconsistent with its own, but it may not offer inducements "so coercive as to pass the point at which 'pressure turns into compulsion.'" For example, withdrawing merely 5% of federal highway funds from states that refuse to raise their drinking ages to 21 was held not to deprive the states of autonomy over liquor regulation. By contrast, threatening to withdraw all $800 million of federal funding from a University based on its law school's policy on military recruiters is so grossly disproportionate that it must be regarded as coercing the University to surrender its right of expressive association.
This is sensible and argues along the lines of established first amendment case law. But is a private university, no matter how much money it gets from the feds, the same thing as a sovereign state?
Perhaps I’m wrong, but it seems to me that Dean Sullivan and the litigants in this case are arguing from a belief that not only do private universities have a right to free association, they also have a right to federal funding. This is a right I don’t believe exists.
The federal government gives each state a significant share of its budget. It does this because the federal government takes in more money—or at any rate budgets more money—than it can legally spend. The federal government cannot order Louisiana to keep U.S. 90 paved to a reasonable level (and Louisiana doesn’t, if you’ve ever had the misfortune to drive on that road). However, the federal government can encourage Louisiana to pave its roads, and gives the state money every year to do so. In Louisiana’s case, this money used to end up in Edwin Edwards’ penny loafers, but that’s beside the point.
Back in the mid 1990s, though, the feds decided that the drinking age should be 21. But the feds can’t make the drinking age 21; it’s a state power. So the feds decided that they would coerce the states into raising their drinking ages by withholding a small percentage of the funding they disburse to the states every year unless the state raised the drinking age. Louisiana was the last to comply, but it did so, after a lawsuit was settled; Louisiana had said the feds couldn’t cut the money supply like that, but the courts found that in fact the 5% figure was not arbitrary or bound to cause an undue burden on the state.
So Dean Sullivan et al are arguing that, like Louisiana, they have a right to federal money, and Solomon’s provision to deny them that money is arbitrary and causes undue burden because it denies them all of that money instead of a small amount. But does a private entity have any right to federal funding at all? The federal government is in contract with the states; the U.S. can no more cut off all funding to Louisiana than it can declare war on Iowa (unless Iowa secedes). The states are sovereigns and are in sovereign contract with the federal government. Stanford has no such contract, and is not a sovereign. It is a private corporation, inherent with the rights of an individual, but no individual has a right to receive government money. Only by meeting the government’s requirements can individuals receive money; and if the government chooses to require you to allow military recruiters on your campus, the only thing you can do about it is stop looking for handouts.
Ah, say the private corporations/universities, but our campus is private property. The government should have to pay to engage in recruiting on our campus. That’s fair enough. Do other employers have to pay to recruit? Hmm… And what do you call the existing hundreds of millions of federal dollars working their way toward your parent institution every year? Does that not qualify as payment? If the government must pay to recruit, then if they don’t recruit, why should they pay?
Ah, it is confusing, indeed. The First Amendment does say that the government cannot coerce you into associating with people with whom you don’t wish to associate. But does denying public dollars to a private institution constitute coercion? Are you a private institution if you cannot survive without public funding? And doesn’t public funding usually come with strings attached? At what point do strings start becoming coercion, and does any of this matter in the context of private institutions? And what happens to Public Law 92-436 if Solomon is overturned?
Yep, it will be very interesting to see how all this comes out. Of course, if DOD would just throw out Don’t Ask, Don’t Tell, then this would all be moot. I guess it’s no use wishing for unicorns, though.
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