As you all know by now, the Third Circuit recently decided that the Solomon Amendment (allowing the Dept. of Defense to withhold funds from institutions that refuse to allow its recruiters on campus) is unconstitutional because it violates the Yale Law School’s First Amendment right of “expressive association.” (I discussed this issue here, here, here, and here.)
The recent decision has been so well covered by the usual suspects, such as Howard Bashman and Powerline (also here and here) that I momentarily entertained the thought of not commenting on the decision. But then I realized that having little to add has never stopped me before.
First, as I’ve just discussed (here), liberals have discovered a new enthusiasm for what Alexander Bickel once famously described as the “passive virtues” of judicial restraint. Funny, but so far I haven’t seen any outraged liberal criticism of the short shrift the two Third Circuit judges in majority gave to the presumption of constitutionality of laws passed by Congress (a point mentioned by one of the knowledgeable correspondents quoted on Powerline). It would appear that liberals would like judges to be restrained only when considering challenges to legislation of which the liberals approve.
Next, in what ways would the precious associational rights of the Yale Law School (the whole school? Every student, professor, and staff member?) be compromised by hosting, for a day or two a year, someone considering willing Yale students for a job just because the interviewer’s organization doesn’t subscribe to all the tenets of the school’s nondiscrimination policy? (Ann Althouse has perceptively critizized Yale’s position here.) In any event, the issue in the case was not whether or not Yale was justified in refusing to allow Dept. of Defense recruiters, but whether or not the Defense Dept. was justified in cutting off any funds it provided to Yale if those recruiters were banned. I believe that a private university has a right, by analogy, to refuse contributions from anyone it pleases (there have been some highly publicized instances of Arab money, for example, being returned after protests were lodged), but I also believe any contributor would be a fool to continue contributing if its recruiters were barred from campus. The Third Circuit has required the Defense Dept. to be this fool.
Finally, let’s take a look at the non-discrimination policy that, according to Yale, the Defense Dept. so egregiously violates:
Yale Law School is committed to a policy against discrimination based upon age, color, handicap or disability, ethnic or national origin, race, religion, religious creed, gender (including discrimination taking the form of sexual harassment), marital, parental or veteran status, sexual orientation, or the prejudice of clients. All employers using the school’s placement services are required to abide by this policy.
Yale, of course, is not alone. Here is Harvard’s similar policy:
The Harvard Law School does not discriminate against any person on the basis of race, color, national or ethnic origin, age, gender, sexual orientation, marital or parental status, handicap, source of income, or status as a Vietnam-era or disabled veteran in admission to, access to, treatment in, or employment in its programs and activities.
The day after the Third Circuit decision Harvard re-instituted its ban on military recruiters, with Harvard Law School Dean Elena Kagan saying in a statement that “I am gratified by this result, and I look forward to the time when all law students will have the opportunity to pursue any legal career they desire.”
I believe, however, that the decision and Dean Kagan’s statement re-instituting Harvard’s ban on military recruiters raise some troubling questions. What about the associational rights of any students who might want to interview for a job in the Judge Advocate General corps or other military offices? Do they have less rights than other students? In fact, wouldn’t Harvard and Yale knowingly admitting a student, or hiring a faculty member, with such heretical views violate those institutions’ associational rights more than allowing an occasional bad person recruiter on campus? Maybe it is they who should institute a”Don’t Ask, Don’t Tell” policy with regard to the views of potential students and professors. After all, why should those unwilling to sign such a pledge be allowed to sully by association the purity of their would-be peers?
More fundamentally, note that both Yale’s and Harvard’s non-discrimination policies bar discrimination on the basis of, among other things, race, and Yale explicitly and Harvard by implication bar any recruiters who do not abide by their policies.
Or do they? Whatever can be said in defense of racial preferences, one thing that cannot be said is that employers who give preferences based on race treat all their applicants without regard to race. As I asked here,
if law schools should exclude all recruiters who refuse to treat all their students equally, shouldn’t all those employers who practice racial preference also be excluded?
To be consistent shouldn’t Yale, Harvard, et. al. bar recruiters from all employers — such as, for example, virtually all other law schools — who award racial preferences?
UPDATE [1 December 10:30PM]
Harvard’s and Yale’s desire to make the rest of the world conform to their own version of nondiscrimination reminds me of the headline of a news article in a Bay Area paper I recall from the days of the Free Speech Movement at Berkeley (I saved the article for many years) that announced, “Chancellor [Clark] Kerr Cracks Down on Off-Campus Non-Students.” Really, I didn’t make that up.
Apparently such behavior is not necessary, however, not even in the Ivy League. Princeton, for example, not only allows military recruiters on campus but even has on-campus ROTC. According to an article in today’s Daily Princetonian, the recent ruling will not affect Princeton. Provost Christopher Eisgruber, a constitutional scholar,
defended Princeton’s position and said the University’s choice does not violate its nondiscrimination policy because it “does not require us to exclude from campus others who do discriminate.”
“Princeton is committed to principles of equal opportunity, including with regard to sexual orientation,” Eisgruber explained, “but we do not believe that our opposition to the military’s policies should interfere with the ability of interested students to pursue military careers.”
Perhaps the good sense displayed by Princeton derives from the fact that it has no law school.