What’s Sauce For The Goose Is … Sauce For The Goose

Or, as David Bernstein puts it in his incisive Harvard Law Record article pointing out the hypocrisy of those who believe the First Amendment protects their right of expressive association but not that of people with whom they disagree, “[t]he inconsistent policy of many liberal and gay rights activists ‘is autonomy on defense; and regulation on offense.'” [Link via the same David Bernstein]

The occasion for this latest bout of hypocrisy is the lawsuit filed by Yale law professors and others against the Solomon Amendment. As Bernstein explains,

That federal law requires all academic units of federally-funded universities to treat military recruiters exactly the same as they treat other recruiters, even when the military’s “Don’t Ask, Don’t Tell” policy conflicts with university policy protecting homosexuals from discrimination by on-campus recruiters. The anti-Solomon Amendment forces are right to object to government interference with law schools’ internal policies, but the activists are also often inconsistent in their support of private organizations’ autonomy.

The Yale professors argue that the Solomon Amendment interferes with

their right to associate for the expressive purpose of promoting equality for gays . . . by penalizing the entire university to the tune of $300 million in annual federal funds if the law school faculty continues to try to promote its pro-gay rights values by prohibiting or discouraging military recruitment on campus.

Bernstein himself believes in the right of expressive association and hopes the professors win their suit, but he points out convincingly that they don’t really believe their own argument, at least not when other people make it. Their suit, he argues, relies heavily on Boy Scouts of America v. Dale (2000), in which the Supremes held that the Scouts had an expressive association right to exclude openly gay scoutmasters. “One would think,” Bernstein drily observes,

that the professors suing the government over the Solomon Amendment would be universally supportive of Dale. After all, if anything, Dale involved a stronger restriction on expressive association than the Yale case does – the Scouts were being forced to admit gays, while Yale can avoid being subject to the Solomon Amendment by declining federal funds.

If one did, of course, one would be quite wrong.

Professor Jed Rubenfeld … has argued vociferously against Dale in law review articles and public addresses. In a speech he gave to the American Constitution Society in August, Rubenfeld argued that the “freedom of expressive association holding in Boy Scouts opens up the possibility of a profound, thorough going attack on the nation’s anti-discrimination laws.” Clearly this displeases him, as he added, “Every anti-discrimination law impedes, burdens the freedom of association, association being a slogan of the people in favor of Jim Crow.” Thus Rubenfeld implied that being in favor the right of expressive association against antidiscrimination laws implies support for Jim Crow, or at least similar moral obtuseness. So why did he join an expressive lawsuit opposing a ban on discrimination against military recruiters?

Or consider the views of Professor Owen Fiss, another lawsuit signatory. Fiss is not only known for his strong support for antidiscrimination laws, he is a leading academic advocate of weakening the First Amendment to combat “discriminatory” speech, such as hate speech. Yet in the Solomon Amendment context, Fiss has suddenly become a strong supporter of the First Amendment, including an expansive right of expressive association. The Solomon Amendment, he stated, “isn’t free association; it’s forced association, and it’s wrong.”

One could extend this analysis a bit, and so I will. The Yale profs seem to think it especially unfair that the entire university could be severely punished because the faculty of one school voted to prevent on campus recruiting by an organization they deem discriminatory. But I would be most surprised if any of the litigating Yale law profs objected when the federal government attempted to force tiny Grove City College in western Pennsylvania to turn over data to prove compliance with Title IX. Grove City had long refused all federal aid precisely to be free from such regulation, but the feds argued that it was the indirect beneficiary of federal aid because some students had their tuition paid with benefits derived from the G.I. Bill. In an odd decision, Grove City College v. Bell, 465 U.S. 555 (1984), the Supremes held that only the entity receiving the funds, in this case the financial aid office, was covered by federal regulations. The Congress then overturned this result in the interestingly named Civil Rights Restoration Act of 1987, over President Reagan’s veto. I wonder how many Yale law profs objected then, or now, to bringing the entire college to heel over what could be the receipt of $1.00 in one office?

Or how about this: what if some university today had a law school that somehow, against all odds, continued to believe even in this day and age that all of its students had a right to be free from racial discrimination, and in deference to that principle decided to exclude all recruiters who discriminated on the basis of race, which of course would exclude any government department or agency that gave any employment preferences to minorities. And, further, what if there were some law similar to the Solomon Amendment in every government department — exclude our recruiters and the whole university loses federal funds. Would the Yale profs defend their right of expressive association or, as Jed Rubenfeld’s statement quoted above suggests, would they see such behavior as simply a modern version of Jim Crow?

Say What? (5)

  1. Ratiocinator November 20, 2003 at 10:05 pm | | Reply

    Good stuff — both the excerpts from Bernstein’s piece, and your own elaborations.

  2. Richard Nieporent November 21, 2003 at 2:16 am | | Reply

    Actually you let them off too easy by only calling them hypocrites. The military’s “don’t ask, don’t tell” policy was upheld as constitutional. Basically, Yale University is saying that if they don’t like a court ruling they can defy it. Does that remind you of what Judge Moore tried to do? The University has a right to speak out against the military’s policy as much as they want to, but not to ban recruiters from their campus.

    The Yale professors argue that the Solomon Amendment interferes with

    their right to associate for the expressive purpose of promoting equality for gays . . . by penalizing the entire university to the tune of $300 million in annual federal funds if the law school faculty continues to try to promote its pro-gay rights values by prohibiting or discouraging military recruitment on campus.

    That statement is so wrong that it is embarrassing. I pity the law students at Yale if this is what passes for understanding of the law at Yale. Read the Solomon amendment.

    if the Secretary of Defense determines that that

    institution (or any subelement of that institution) has a policy or practice (regardless of when implemented) that either prohibits, or in

    effect prevents

    (1) the Secretary of a military department or Secretary of Transportation from gaining entry to campuses, or access to students(who are 17 years of age or older) on campuses, for purposes of military recruiting; or

    (2) access by military recruiters for purposes of military recruiting to the following information pertaining to students (who are 17 years of age or older) enrolled at that institution (or any

    subelement of that institution):

    (A) Names, addresses, and telephone listings.

    (B) Date and place of birth, levels of education, academic majors, degrees received, and the most recent educational institution enrolled in by the student.

    Only if a university prohibits or prevents recruiters from gaining entry to the campus are they penalized. The university has a free speech right to dispute that policy all they want. In fact all schools have a disclaimer to their non-discrimination policy that states that they disagree with the military’s policy on gays and that they are working to change that policy. Thus, they can discourage students through free speech means as much as they want to, as long as they do not prohibit or prevent the students from meeting with the recruiters.

    The Solomon law is really not so difficult to comprehend. It is written in plain English. Even a Yale law professor should be able to understand it.

  3. stu November 21, 2003 at 1:37 pm | | Reply

    He who pays the piper calls the tune. If the Yalies don’t like the terms of the contract under which they receive $300M, then they can opt out. Guess they would rather whine. Apparently, the great reputation of the Yale Law School continues to rest, as it has for some years now, on something other than the quality of its faculty.

  4. Owen Courrèges November 22, 2003 at 4:04 am | | Reply

    I think Bernstein’s position in favor of the lawsuit is nonsense… There is surely a right to expressive association, but there is no right to thumb one’s nose at the government and still take federal funds. A law school can speak its mind without the benefit of federal dollars.

    I hope that Bernstein is at least consistent, though, and thus opposes the Civil Rights Act of 1964 and hopes that it is struck down on Constitutional grounds.

  5. […] of religion. Or take the case of tiny Grove City College in western Pennsylvania (discussed here). Grove City adamantly refused all federal funds because it wanted to be free from federal […]

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