The Supreme Court will hear argument next week on the Solomon Amendment, which provides for cutting off federal funds to colleges that refuse to allow the military to recruit on campus. The attack on the amendment is being led by a group of law professors, supported by a number of law schools, universities, the AAUP, and the usual suspects among liberal interest groups.
No one will, or at least should, be surprised that the recent news stories on this debate implicitly, often explicitly, and occasionally heavy-handedly support the critics of the Solomon Amendment, warning that both civil rights, civil liberties, and academic freedom are in danger of being strangled by zealous governmental intrusion. For example, an article in the Boston Globe begins breathlessly:
IF THE FEDERAL government contributes hundreds of millions of dollars to colleges or universities, should it be allowed to dictate what goes on at those institutions?
Not to be outdone, the Chronicle of Higher Education‘s article today boldly asserts:
On its face, the case is a First Amendment fight over free speech and the power of the purse. In a larger sense, however, it is a battle over academic freedom, and the right of colleges to govern themselves as they see fit.
The government’s position in defense of the Solomon Amendment was given short shrift in both articles, with short quotes from a few students and lawyers associated with the government. This was in marked contrast with the arguments of the critics, whose arguments were quoted frequently and extensively. Here’s a typical example, this one from the Chronicle:
If the Defense Department prevails, critics of the Solomon amendment fear there will be nothing to stop the federal government from using its budget oversight to achieve all kinds of ideological ends. The government could withhold federal funds from universities that engage in stem-cell research, for example, or that provide birth control to their students.
As Robert C. Post, a law professor at Yale University, puts it: “What’s to prevent this new Congress from cutting off all funds if the biology department doesn’t teach intelligent design? It could turn the whole country into Kansas.”
Now it seems to me that it is a bit of a stretch to argue that all of academia will be turned into Kansas if the government is allowed to condition its aid on its ability to recruit on equal terms with others the beneficiaries of that aid. Nor do I find the critics’ reliance on Boy Scouts of America v. Dale any more persuasive. The Chronicle quotes Georgetown Univ. law professor David Cole:
“If the court is so willing to protect the right of the Boy Scouts to promote homophobia, shouldn’t it also be willing to protect the rights of law schools to promote nondiscrimination?” he asked.
Well, no, not necessarily. As the Boston Globe explains,
the law schools’ claim that the Solomon Amendment violates their First Amendment rights — because it requires them to assist the military in discriminating against gay students, thus conveying a message they find abhorrent….
But surely students and others can see that the relationship of a Boy Scout troop leader to the Boy Scouts is fundamentally different from the relationship of a JAG recruiter who visits a law school for a day to recruit to the university of which the law school is a part. Do law schools really mean to say that they endorse the values and behavior and “message” of all other recruiters whom they allow to visit? If so, surely no religious organization should be allowed to recruit. Have they been banned as well? There is, of course, also the fact that government’s claim to equal access recruiting is tied to its provision of federal funds. The federal government, to the best of my knowledge, does not subsidize the Boy Scouts.
“But,” you may say (well, not you, but someone), “don’t the Boy Scouts have some sort of tax exemption? Isn’t that a subsidy?” Thanks! I’m glad you brought that up. Although I actually don’t think a tax exemption is a subsidy, its effects are obviously similar, and that brings us, as so many things seem to do (see, for starters, here, here, and especially here) to Bob Jones University. For those of you who don’t recall Bob Jones, a prescient observer (yes, it was I) wrote in the first of those “heres” linked above:
In response to the “segregation academies” that sprouted across the South after the Brown desegregation decision, the IRS launched a campaign to revoke the tax exemptions of discriminatory private schools. One obstacle was that many of these schools were so hostile to blacks that they didn’t need clear, and hence provable, discriminatory policies. At Bob Jones, however (whose origins lay not in response to Brown but to the anti-fundamentalism stirred up by the Scopes trial in the 1920s), the clear policy against interracial dating seemed to present a tempting target. Revoking Bob Jones’s tax exemption, however, proved not to be so easy, and at some point in the future the way it was done conceivably could have some unintended but dramatic consequences.
Back in the 1970s the IRS ruled that BJU’s discriminatory dating policy was “against public policy,” and therefore the school could not be charitable and thus could not qualify for an exemption. The difficulty with this ruling lay in the fact that Section 501(c)(3) of the tax code provides exemptions for “religious, charitable, or educational” institutions, and BJU is and was both religious and educational. No problem, said the IRS, which deconstructed the tax code so that “or” was read as “and” — BJU’s exemption was revoked because it was deemed not charitable, even though it was clearly both religious and educational.
Bob Jones, in short, lost its tax exemption not because it violated any civil rights laws (and it received no federal funds to lose under Title VI) but because its policy against interracial dating (a largely theoretical, theological point, since the Bob Jones students were not what we would now call “diverse”) was deemed to violate “public policy,” as interpreted by the IRS.
I bring up Bob Jones, again, at some length because it supports my strongest objection to the lawprof Solomon critics: if, as they claim, their greatest concern is to protect academic freedom, where were they when Bob Jones was making its extended and torturous way through the courts? Where are their law review articles pointing out the ominous threats that they should have seen were implicit in allowing the IRS’s view of “public policy” to trump both academic and religious freedom?
The closest I’ve seen anyone on the anti-Solomon side of the argument come to addressing this issue is Prof. Laurence Tribe of Harvard, as quoted in the last paragraph of the Boston Globe article:
”Some universities like Bob Jones or some analog of Bob Jones on the gender side might well be able to generate a First Amendment argument,” Tribe says. ”And I would hate to see a world in which that kind of First Amendment claim became a general blueprint for avoiding the neutral across-the-board application of anti-discrimination rules.”
But, again, how is it possible to take Tribe seriously here since, as a supporter of racial preferences in admissions and hiring, he actually opposes “the neutral across-the-board application of anti-discrimination rules”? Indeed, since all the law schools involved here themselves practice (legal) discrimination in what they believe is a good cause, promoting “diversity,” and invite recruiters on their campuses whose firms and companies do the same, they are standing in a glass house when they throw stones at another institution for engaging in allegedly discriminatory (but legal) behavior to promote what it regards as a good cause, protecting order in the military, especially since both the “don’t ask, don’t tell” policy to which the Solomon critics object and the Solomon Amendment itself are both clearly the “public policy” of the United States.
[UPDATE: In fact, as David Bernstein has just pointed out, “don’t ask; don’t tell” is not just “public policy”; it’s the law, passed by Congress and signed by the president.]
It is also important to note that Bob Jones was the rule, not the exception, of liberals advocating the use of the carrot of federal aid as a stick to force colleges to comply with rules against both race and gender discrimination, with no second thoughts about such niceties as “academic freedom.” On this point the Boston Globe quotes Burt Neuborne, now a law professor at NYU and formerly general counsel of the ACLU:
NYU’s Neuborne recalls warning about the possibility of something like the Solomon Amendment back in the early 1980s, at a time when civil rights advocates were pushing the Supreme Court to use the threat of wholesale funding cuts as a tool to enforce Title 9. ”We developed a position that said if any piece of the university takes federal money, the entire university is covered by the anti-discrimination norm,” says Neuborne. ”I warned we wouldn’t be happy with this test because it will mean the government gets to control whole universities.”
This warning obviously fell on deaf ears, as attested to by the list of liberal organizations opposing tiny Grove City College in another under appreciated civil rights case from the 1980s, Grove City College v. Bell (1984).
A small non-denominational private liberals arts in western Pennsylvania, Grove City College refused all local, state, and federal aid because it did not want to be forced to comply with the myriad rules and regulations that came along with that aid. Alas, it couldn’t escape; although the college received no aid, some of its students did, and that was enough to get it caught in the net of federal regulation. Although it claimed not to discriminate in any of its programs (and, indeed, the administrative law judge and other judges involved all affirmed that no discrimination existed or had even been alleged), the college refused to sign forms required by Title IX stating that it did not discriminate against women in its athletic programs.
The Dept. of Education and its supporters in the liberal interest groups argued that giving aid to some Grove City students meant that the entire college was subject to federal supervision to ensure compliance with Title IX. No complaints about the dire threat to academic freedom were heard from liberals then (or in any subsequent law review articles I’ve seen), nor were they heard then, or later, to warn about this attempt “to dictate what goes on” at Grove City or the attack on “the right of colleges to govern themselves as they see fit.”
In the end, the result in Grove City was a form of Solomonic absurdity (although one that could provide a similar Solomonic compromise re Solomon): because the language of Title IX prohibited sex discrimination in “any education program or activity receiving Federal financial assistance,” after the litigation was filed the Dept. of Education backtracked and argued, and the Supreme Court reluctantly agreed, that the reach of Title IX extended only to the financial aid office that received the checks containing aid for the students. (To see just how reluctant, see Justice Powell’s concurrence, joined by the Chief Justice and Justice O’Connor. Incidentally, Powell was also reluctant to join in taking away Bob Jones’s tax exemption, though he did. In a concurrence he in effect said that the IRS was wrong to revoke the tax exemption, but it had become right by the passage of time it took Bob Jones’s appeal to reach the Supreme Court. Really.)
It is hard to resist the conclusion that to many influential advocates the academic freedom of the Harvards, Yales, and Stanfords is sacrosanct and must be protected at all costs (except the cost of forsaking federal aid) from the heavy hand of government intrusion, but they don’t give a fig about the academic (or religious) freedom of the Bob Jones’es and the Grove Citys.
Finally, when will we hear from all those liberal critics of President Bush’s judicial nominees who profess to want nothing more in judge or justice than a “true conservative” who will be deferential to Congress? The Solomon Amendment, after all, was passed by Congress; shouldn’t the Court be deferential to it?
What? Oh, we have heard from them. It’s just that in their newly discovered zeal for academic freedom they seem to have forgotten about deference, at least for now.
See this excellent post by Paul Horwitz.
UPDATE II [30 Nov.]
Also see the discussion of Grove City by David Bernstein on Volokh.
UPDATE III [30 Nov.]
On the matter of deference to Congress, Johnson’s article has a revealing quote from Mark Tushnet, a highly respected left-leaning law professor at Georgetown. Tushnet was president of the American Association of Law Schools (AALS) in 2004. In a memorandum to AALS members, Tushnet explained why the board of AALS had decided unanimously not to initiate or join litigation against the Solomon Amendment. Among those reasons were the following:
The litigation would have to take on two difficult issues, the scope of Congress’s spending power (an unconstitutional conditions point), and the degree to which the courts should defer to Congress’s judgments in matters involving the military forces….
To an uninformed observer, it would appear that liberal critics of President Bush’s judicial nominees believe judges should defer to the decisions of Congress that liberals approve, but overturn those liberals oppose. What am I missing here?
UPDATE IV: Bob Jones’s Revenge [6 Dec.]
I haven’t yet seen a transcript of today’s oral argument over the Solomon Amendment, but according to several observers who were in the audience the arguments successfully pushed by liberals against Bob Jones University and Grove City College did in fact return today to bite them in the behind.
An observer from the Harvard Crimson noted that Justice Breyer made a direct comparison to Bob Jones:
Breyer also said he was concerned that FAIR’s argument might allow some schools to receive federal funds while pursuing anti-gay or racist policies.
“To be clear,” Breyer said to Rosenkranz [attorney for the plaintiff], “you would also argue that schools that are angry at the military because they believe the military to be too favorable to gays have the same right…and also the same right of Bob Jones University because they disapprove of social mixing of the races?”
The Washington Post article refers to Justice Breyer observing that “Rosencranz’s argument could be used by ‘the worst segregationists you can imagine’ to limit blacks’ access to a campus.”
Lyle Denniston, on SCOTUSBLOG, noted a central point made by Paul Clement, the U.S. Solicitor General who defended the Solomon Amendment:
The Court should be worried, Clement said, about law schools next objecting to military recruiters on a wide array of other grounds — objections to the military’s exclusion of women from combat positions that are the route to leadership, opposition to the war in Iraq, or to the war in Afghanistan. And, he said, “we have to worry about this coming back in the context of Title VI and IX.”
Dahlia Lithwick, writing in SLATE, stressed the same point:
Clement says that other acts of Congress, including anti-discrimination laws such as Title VII of the Civil Rights Act, also encroach on “associational interests.” If you extend FAIR’s logic, he points out, schools could refuse to hire veterans and justify it as a war protest. Justice Ruth Bader Ginsburg says such an action would be “far fetched,” given that the schools’ policy “is to teach equality.” Clement’s rejoinder is that it hardly teaches equality to include homosexuals but exclude the military.
Some of us would have also rejoined that it hardly teaches equality to treat individuals differently based on their race or ethnicity, which all of the law schools challenging Solomon do.
It looks as though the Harvards, Yales, Stanfords, et. al. are going to, in their eyes, be subject to the heavy hand of federal intrusion in large part because of the arguments liberals made in subjugating renegade places like Bob Jones and Grove City.