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December 01, 2004

Solomon's Shield

Fenster Moop writes:

Dear Blowhards,

You probably have heard the news that the Third Circuit has, for the time being, found the Solomon Amendment unconstitutional.


That's the federal law that requires colleges and universities to permit military recruiters, with the price of non-compliance being the loss of federal funding. There's lots about it on-line, but if you want the best intro, with good links, try John Rosenberg.

The Court's reasoning was based on the notion of "expressive association"--the same notion that permits the Boy Scouts to exclude gays. In this case, though, the "association expressed" by Yale Law School was against anti-gay discrimination: its policies included a ban on recruitment if the prospective employer permitted such anti-gay discrimination.

The Court's reasoning has been criticized and some commentators feel the ruling will be overturned. The argument here: that the Third Circuit is mixing up the freedom Yale School has to expressively associate with a separate matter entirely--the freedom the federal government ought to enjoy in gaining recruitment access to institutions taking its money. In other words, it can be argued that Yale is quite free to deny access to military recruiters . . . as long as it is willing to pay the price. Colleges play that game with the feds all the time, and it's hard to see why it's much different here.

But let's say that, even if the case has been wrongly decided, it stands and colleges are free to expressively associate as they see fit. Well then, what will they do?

The prestiege elites like Harvard Law and Yale Law will doubtless bar recruiters, loudly and proudly. But what about others? I'll bet a lot of places have been only too happy to have Solomon in place--it allowed them to permit recruitment while blaming a bad federal law. A political win-win. Absent Solomon's shield, lots of places will be forced to make a true existential decision as to how they wish to express themselves on this score. And if it ends up being a hard decision, that will be a good and bracing thing.



posted by Fenster at December 1, 2004


I second that. HOWEVER, just because
an institution can afford to deny access to
recruiters makes me cringe ... much as I would
cringe if a bank refused to allow 'certain'
people from depositing money. Carried to its
ultimate result, it is bias which I, for one,
will not support. Nor should any clear thinking
human. And branding 'recruitng' as an arm of
government is also abhorent to me. It is our
defense. Our protection. Our military is 'us.'
It is for us, by us and of us. Any other view of
it is political and don't wash with me. I hope
I live long enough to see the people come to
understand that ... it's more than "ME". It is
us. And we damned sure better be about the ...
business of 'us' or we will cease to be.

Posted by: Steel Turman on December 2, 2004 1:58 AM

I'm going to assume that even if the military is defending you, there are situations where you would not support it. For example, if the army arbitrarily executed those citizens not supporting the military. (Yes, absurd, but proof that there exists *some* conduct so unethical that you would you would not support the military if it practiced it.)

Thus, this is simply a question of whether you consider the military practice of discrimination against gays to be so immoral and unethical that the military no longer deserves to be supported in this particular fashion. Obviously you do not. However, there are many people and institutions that obviously *do* consider such conduct so egregious that they would withdraw their support from appearing on campus.

Not a case of "Nor should any clear thinking
human". Unless of course, you can't even imagine a group clear thinking humans who find discrimination against gays to be utterly repugnant and deserving of condemnation. It's simply a matter of how strongly you feel about the discriminatory practices.

Posted by: Tom West on December 2, 2004 9:42 AM

I'm with you. I do think institutions--private ones at any rate--ought to have a lot of latitude. That was the essence of the Boy Scout decision in "association" terms.

But if I were an administrator at such an institution, would I support a policy barring recruiters? No I would not.

Posted by: fenster on December 2, 2004 9:44 AM

Fascinating. The part of this I find myself focusing on is that (if I'm following right) the court has decided that, altahough the government funnels money to colleges and universities, it can't require them to allow recruiting. Amazing -- I wonder what the reasoning behind this is. It must be pretty ... er, sophisticated. Because doesn't the government get to require lots of other things of the institutions is provides funding to? Isn't that one reason for the existence of Hillsdale, the one college that's truly private, because it accepts no government money? So I wonder on what basis the government can require certain things of its recipients but not the chance to recruit.

Legal reasoning usually looks like a bunch of malarkey to me ...

Posted by: Michael Blowhard on December 2, 2004 11:28 AM

Re: Harvard and other elite law schools forbidding recruiting at the cost of federal funding: you are flat wrong. I'm a student at HLS right now and they have been very up front about the fact that the billions of dollars of federal funding for research at the medical school is more important to the university than expressive association. Yale will bow as well. To do otherwise would cripple entire branches of the university to gratify the preferences of the law schools, and they lack the fortitude.

Posted by: Amber on December 2, 2004 12:28 PM


You may have misread my post. I guessed that Harvard and Yale would bar recruiters if that action did not result in the loss of funding. Indeed, that's just what Harvard Law did yesterday--quick out of the box!


My other point was to wonder whether it will be so easy for others to follow suit. Recall E.L.Doctorow's anti-Bush tirade being booed at Hofstra last year? I wrote about it at:

and here

That escapade suggested to me that, even if faculties and administrators were determined to be reflexively left-partisan, not all parents and students agreed, at least in a post 9/11 world and at least at a Long Island university. If I were a college with broad middle-class appeal, I'd think twice before jumping to bar recruiters just because everyone I knew on campus assumed it was the only reasonable course of action.

Posted by: fenster on December 2, 2004 1:45 PM

Sorry for the misreading. Kagan was quick to tell us all she was booting JAG, but she'll be just as quick to take them back when the ruling is reversed.

Posted by: Amber on December 2, 2004 2:46 PM

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