The Solomon Amendment is a Federal law which directs that certain Federal funds be withheld from recipient colleges and universities that do not grant military recruiters access to their campuses on a level equal to that provided to any other employer.
The Forum for Academic and Institutional Rights (FAIR), an association of law schools and professors that oppose discrimination on the basis of sexual orientation, alleged that the Solomon Amendment infringed on its First Amendment freedoms of speech and association due to the militaryÂ’s discriminatory recruitment practices (i.e., “donÂ’t ask, donÂ’t tell”). (See Abhi’s previous post on the case here.)
The U.S. Supreme Court unanimously ruled against FAIR yesterday, issuing an opinion [.pdf] that upholds the constitutionality of the statute and that in effect gives FAIR three-snaps in a Z-formation (i.e., the “Zorro snap“). (While some legal commentators predicted a unanimous outcome, I honestly did not think a case this contested in the public sphere would yield an 8-0 result.)
Joan Biskupic of USA TODAY described the Court’s reasoning:
“Accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions.” [T]he basic communications required of colleges were bulletin board notices and e-mails [which] hardly could be compared to the kind of “compelled” government speech that has been invalidated through the years, such as a West Virginia law that required schoolchildren to recite the Pledge of Allegiance and to salute the American flag, or a New Hampshire law that ordered the state motto — “Live Free or Die” — to be on license plates. [Link]
As this astute (and hopefully single) desi notes on her blog, Mia Culpa:
The decision boosts the Bush administration as it struggles to maintain recruiting levels to wage wars in Iraq and Afghanistan. It’s a defeat for Harvard, Yale, Columbia and other universities that accused the government of intruding on academic freedom. [Link]
I was interested in this case in part because the Court could have addressed the extent to which the government can use Federal funding as a means to ensure compliance with Federal civil rights laws, including Title VI of the Civil Rights Act of 1964, which generally prohibits discrimination on the basis of race, color, or national origin in all programs or activities that receive Federal financial assistance. Title VI may be used to challenge racial profiling and hate crimes.
The government argued that the Solomon Amendment is analogous to Federal civil rights statutes, in that the government may impose conditions on institutions that receive Federal funding. FAIR, however, contended that the Solomon Amendment is different, as the government cannot subject recipients of Federal financial assistance to conditions that violate the Constitution. (FAIR also claimed it is ironic that, in defending the Solomon Amendment, the government invoked civil rights laws in its attempt to require the schools to assist discrimination.)
But, the Court disagreed with FAIR. In stating that the Solomon Amendment does not place an unconstitutional condition on the receipt of Federal funds, the Court also noted that the First Amendment would not prevent Congress from directly imposing the statuteÂ’s equal access requirement.
His second post and he is already using SM to get a date. We chose well in this one. 😉
Why should the college care what institution is coming to campus ? If they want the military to be more like their students Their policy should be to encourage students to go to those organization and climb up ladders so that they can influence their policies. Do the same colleges refuse to take money from DARPA knowing that the military will use that technology some time down the road ?
While some legal commentators predicted a unanimous outcome, I honestly did not think a case this contested in the public sphere would yield an 8-0 result.)
The Supreme Court really had no choice but to side with the government. FAIR’s argument was hardly persuasive.
Why should the college care what institution is coming to campus
Well, because if the college has an established doctrine that incluces a policy of non-discrimination, then it can’t allow any group, organization or institution that supports discrimination onto campus without compromising said doctrine; doctrines may not carry the weight of the U.S. Constitution, but such things are the social, political and above all, legal backbone of a university and shouldn’t be broken.
And they target disprivileged groups, particularly black, Latino and the lower income people in general.
Well then why dont the same universities kick DARPA out, knowing that it is the MIC(military-industrial-complex) that funds them with the goal of using these technologies in defense programs ? Why is the back bone only when there isnt money involved.
The demographic data doesn’t support your supposition, Shruti. Razib has gone over this data lots of times 🙂
The military is only following the law, isn’t that correct? Yes, I know the military gave the initial advice that led to the law, but if you change the law, then the military will have to accept gays and lesbians? That’s my understanding, anyway. Please correct me if I’m wrong (I’m sure that won’t be a problem). So, go argue the law, law school types.
It’s a principle thing: from what I understand, it won’t really help recruitment levels. I think they’d like to change the anti-military culture of academia. Academic freedom, indeed. How much freedom is there really in academia? I’m not talking right versus left, but entrenched interests versus the new, the challenging, the different. Anyone working on a campus here really think campuses are that cutting edge and open to new ideas? My experiences have been varied…….
Are you sure that DARPA does discriminate based on the sexual orientation? If they dont then its consistent with the University’s position.
With the caveat that I have not yet read the SCOTUS opinion but have read the lower court opinions, I think the issue for the law schools here, and the one that had trouble fitting into the framework established by First Amendment case law, is not the infringement of free speech, but its dilution. The Solomon Amendment doesn’t prevent a law school from screaming its opposition to anti-LGBT discrimination at the top of its lungs. But it prevents the law school from backing up that statement with action and thus dilutes the force of that speech. Because they must host discriminatory military recruiters, law schools are essentially forced to modify their stance against discrimination by saying, “But it’s ok when the military discriminates against LGBT law students.” To those who would say that law schools that want not to dilute their speech should simply turn down the money, there is constitutional jurisprudence that provides that taking away lots of funding unrelated to the speech limited by the statute in question is just as unconstitutional as an outright ban on speech. The funds at issue here are not subsidies or grants to law schools, but to the universities more broadly, generally medical schools and science programs.
I expected the Court to go this way but am surprised by the unanimity.
The most interesting First Amendment argument made by FAIR was offered in respect of its compelled speech claim: that while the law schools can protest against and disassociate themselves from the military’s discriminatory recruitment policy, the law schools should not be in a position where they are forced to say anything at all. As FAIR noted in its brief:
DARPA funds military oriented scientific project. The end consumer of the work darpa funds is the military. They should stop writing any grants to darpa.
??? do they twist arm and force them to sign into armed services. The facts are lower income demographics choose certain jobs in the armed services more readily. A college graduate would join as an officer, where as a highschool graduate would as a private.
there is constitutional jurisprudence that provides that taking away lots of funding unrelated to the speech limited by the statute in question is just as unconstitutional as an outright ban on speech.
So, the conflict is whether or not the government, can create a scenario that requires a university, in certain circumstances, to forfeit their right to free expression in order to receive funding… Doesn’t seem right, of course, but isn’t the problem here that FAIR disputed the constitutionality of the Solomon Amendment (which only guides access but not conduct and thereby sidesteps the First Amendment), by taking aim at the constitutionality of the military, and not the Amendment? Maybe I’m wrong, but it seems like an indirect argument that was bound to fail…
Roberts didn’t disappoint with his third SCOTUS opinion – it was clean and clear (and under control). FAIR’s challenge was a long shot and I’m surprised the Third Circuit went along.
law schools are essentially forced to modify their stance against discrimination by saying, “But it’s ok when the military discriminates against LGBT law students.”
That’s the Supreme Court’s point – allowing the military on campus isn’t saying much at all (“not inherently expressive”):
If all governmental activities that caused me to want “to ameliorate, protest, or disclaim” were unconstitutional, federal courts would be more overworked than they already are.
There’s another compelled speech argument to be made: that the law schools are compelled to help the Department of Defense spread its message that discrimination on the basis of LGBT status is just peachy. Did FAIR make this argument? I don’t think so. But it was made in another Solomon Amendment suit.
revision: i should replace “want ‘to ameliorate, protest, or disclaim'” with “be compelled ‘to ameliorate, protest, or disclaim'”
dogday asks:
Are you suggesting that this lawsuit was an attempt to get “Don’t Ask, Don’t Tell” declared unconstitutional? If so, it wasn’t. The law schools wanted the military off their campuses so long as the military refuses to sign the same anti-discrimination policy every other on-campus interviewer signs. FAIR didn’t question the existence or constitutionality of “Don’t Ask, Don’t Tell.”
Do the universities get offended by religious groups that discriminate against homosexuals, unbelievers, polytheists, idolaters, atheists and the like? Have any liberal private universities tried to forbid the Catholic Church, Islamic groups etc. from operating on campus in defense of gays? It is not just the US armed forces that have a dim view of gays, you know.
I think the difference there is that religious groups that do their thing on campuses are not officially state institutionalized.
As per the racial discrimination, I guess I was speaking anecdotally, because that kind of discrimination is pretty apparent in the recruitment that goes on at my school. I won’t pretend to have done the kind of research that Razib has apparently done, and if it’s not already too exhausted on this site or too tedious to go over, I’d be open to hearing what his research indicates.
I believe it broke down into the Military being overwhelmingly white, middle class, with the African American population under represented, hispanic population slightly overrepresented when compared to the census.
even if it indicates that blacks/latinos may be overrepresented in military it doesnot indicate they target disprivileged groups. All it would mean is certain groups find that employment agreement ok, while others dont. and one would have to consider educational backrounds of the groups.
What difference does it make? Let me take a wild guess and say that Ivy League placement offices will not look kindly at private defense contractors who are anti-gay (are there any?). BTW, the Catholic Church for example, has a state of its own in the Vatican. If certain universities can agitate for divestiture of Israeli assets, I don’t see why they cannot come up with a credible anti-Vatican divestiture program because of its anti-gay stance. In addition, a lot of states are explicitly Islamic – the univs can also come up with divestiture programs against those countries too because of Islam’s anti-gay stance. Not that there are lots of non-petroleum related investments in Islamic countries.
The theocracies you mentioned are outside the United States, and I was talking about the institutionalization of religion vs. the institutionalization of the military in the US. I meant that there is an explicit emphasis on the separation of church and state in the US. I should have chosen better wording than “officially state institutionalized” because I would argue that certain religious constructs and processes are in fact institutionalized in the US, even at the constitutional level. But it is not the same as the military, which does not suppose itself to be separated from the state. Recruitment in the US is secularized. It is supposed to be a matter of national defense, and I don’t know the exact legalities, but I believe the state has a lot of flexibility in the name of national defense. I can imagine this is where things get messy when the universities are involved too. It’s in that situation, one can argue, the divestiture of Israeli assets and other such things occur most likely as a result of the university’s corporate partnerships, state sponsorships and such investments. So I guess what I’m saying is that it’s all related one way or another, but the state has an obligation to separate itself from religion, whereas it has no obligation to separate itself from its military.
Shruti,
Razib (the one MD is refering to) had showed that most of the US military (commissioned officers and non-commissioned personnel) are whites % wise (if you normalize the datasets by the actual racial mix within America) through some of the data sets and studies. He had also showed that most of the casualities in Iraq if normalized by the general population diversity, then it is white.
From my observations, I think he is correct. For officer class, please go to any military academy or place like Texas A & M, and they often tend to be middle class to begin with.
Also often, poorer whites in South are as willing to join military as minorities as non-commissioned personel – there poverty is the common denominator.
I think lot of people confuse that they are disportionally far lesser minorities as officers but more as non-commissioned within their own racial group – I think that I have read that in many places. That is a different issue.
If Razib shows up, he will point to the data sets and studies.
The law schools’ policy is categorical — no recruiters (private for-profit, religious non-profit, non-religious non-profit, government) may use campus facilities if they do not comply with the law schools’ non-discrimination policies:
So the policy itself makes no distinction between the military and other recruiters. The main difference with the military is that they have the power (now affirmed) to strong arm their way onto campus in violation of the law schools’ policy because they provide universities with federal funds.
Basic information about the policies and the Solomon Amendment litigation can be found here.