The Solomon Amendment case

I’m in the military. I’m trying to go to law school. So this whole Solomon Amendment case that the Supreme Court agreed to hear during the next term is of interest to me. Here’s an article about it from the Durham Herald Sun.

Some background: In 1994, a year after Don’t ask, don’t tell became law, the Congress passed some piece of legislation to which had been added the Solomon Amendment, which declared that any school receiving federal funding had to allow the military to recruit on campus. The consequence of course is that a school that does not allow military recruiters on campus is barred from receiving federal funding.

Few schools batted an eyelash at this. Many schools that receive federal funding also have ROTC on campus already, which implies having recruiters, and allowing military recruiters to stand alongside recruiters from private companies hasn’t caused an uproar on any university’s main campus in the 10 years since Bill Clinton signed Solomon into law.

But law schools are a different matter. I’m not entirely sure why. All college campuses have some form of anti-discrimination policy. Law schools often have their own separate policy that folds into the parent university’s policy. And law schools by and large claim to adhere to a strict anti-discrimination code, Supreme Court cases favoring race-based admissions notwithstanding.

Where this starts to matter is, as you might have already guessed, with the LGBT crowd. While 50 years ago the military was way ahead of the rest of the country on civil rights and racial equality (it wasn’t perfect, no, but it was a fair sight better than any other organization in the country), today we lag well behind most of the rest of the country when it comes to sexual orientation.

There are several institutional reasons for this, none of which I’ll go into because I don’t care about them. I tend to think Don’t Ask, Don’t Tell is a ridiculous policy, especially when one considers that in 2003 the military threw out seven Arabic, Urdu, and Farsi linguists because they didn’t want to live in the closet. This at a time when the military freely admits we don’t have enough Arabic, Urdu, or Farsi linguists.

Anyway, student groups at several law schools around the country (the usual suspects in many cases, Harvard and Yale and Michigan, but also less likely suspects like Duke) have protested the Solomon Amendment’s requirement to allow military recruiters on their campuses.

Now, the anti-Solomon crowd wants to frame the debate this way: Do law schools have a First Amendment right to avoid associating with groups that don't share their non-discrimination views? Obviously, stated that way, it’s hard to argue against it. After all, freedom of association is right there in the Big C, plain as day.

The government of course prefers to point out that the law schools are entirely free not to associate with the military if they don’t want to. And the government is free not to give them money. There is after all no inverse Solomon Amendment saying that the government must give funding to law schools.

Duke Law student Jeffrey Filipink says that “Our opinion essentially is asking the military to overturn the 'Don't Ask, Don't Tell' policy if they wish to recruit. It isn't an anti-military standpoint. It's an anti-discrimination standpoint."

Filipink should be the group’s spokesman. Of course, what he forgets to say is that Congress alone has the authority to change that law, and while they may have passed it on the basis of military advice, they can change it if they want. Congress also gets to say who gets money and who doesn’t, and it’s plainly true that even if the Supreme Court strikes down Solomon, Congress is free to exclude any school that won’t allow military recruiters from its appropriations bills. Actually, I think it would be rather a terrific show of force if they did so. Nobody reads the damn approp bills anyway because they’re 2000 pages long, so until the thing had already been passed nobody would have a chance to complain.

Duke professor Erwin Chemerensky takes what in my view is a less defensible position (but then I don’t have the advantage of 3 years of Chemerensky’s instruction). "I think it's about law schools having the First Amendment right ... to not be compelled to convey the military's message," Chemerinsky said.

I’m not a lawyer, but even after I become a lawyer (assuming that happens), I still think I’ll believe it’s a rather tortured form of logic to say that having a recruiter on your campus is the same as conveying the military’s message. Of… discrimination? So, what he’s saying is that, despite the school’s strong anti-discrimination policy, allowing a recruiter on campus will tell everyone that the school actually agrees with the military’s idiot policy on LBGT rights. I don’t follow you. Believe me, I’ve read argument transcripts where precisely this logic is followed, and I don’t follow it. But maybe that’s because I’m insane. Or… maybe it’s the other way around.

In any event, I think Chemerinsky’s argument is self defeating. The Solomon Amendment does not compel a law school to “convey the military’s message.” If Chemerinsky doesn’t want Duke to convey said message, he’s free to encourage the school to ban recruiters. The school would give up federal funds but, as I assume the solicitor general will point out when this case is argued, there’s no legal requirement for Congress to give Duke money in the first place. Solomon would be inherently illegal if schools were required to receive funding OR if the government was required to give schools funding. Neither of these things is true.

I don’t care whether you want to ban military recruiters from your campus or not. None of the law schools I’m planning to apply to have taken part in this debate (they are in the South, after all), and I’m not gay, so really, I don’t much care about how it comes out one way or the other. But I don’t understand why it’s even an issue.