Thanks to Howard Bashman and others, most of you know by now that the Supreme Court, in an 8–0 opinion by Chief Justice Roberts, has upheld the Solomon Amendment (Rumsfeld v. Forum for Academic and Institutional Rights).
I do not want to return to the merits of this issue, which has been well and extensively covered elsewhere and even discussed here (citing earlier posts) from time to time. Actually, the previous sentence is an overstatement, since I do want to return to one issue that I discussed in the post linked above.
Justice Roberts’s opinion spends some time rejecting the argument of a group of amici who argued that
the Solomon Amendment’s equal-access requirement is satisfied when an institution applies to military recruiters the same policy it applies to all other recruiters. On this reading, a school excluding military recruiters would comply with the Solomon Amendment so long as it also excluded any other employer that violates its nondiscrimination policy.
In the Court’s opinion, however,
The Solomon Amendment does not focus on the content of a school’s recruiting policy, as the amici would have it. Instead, it looks to the result achieved by the policy and compares the “access . . . provided” military recruiters to that provided other recruiters. Applying the same policy to all recruiters is therefore insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military.
Thus not only do the anti-Solomonites believe in a “diversity” that is only skin-deep, that does not extend to ideas or institutions (or even the temporary presence of recruiters) of which or whom they disapprove, but in order to further their cause here they reject a theory of discrimination that most of them are quick to assert elsewhere: that a policy can and should be rejected as discriminatory when applying it results in a “disparate impact” on a group in such a manner as to deprive it of equal treatment.
The other trouble with the amici argument is that as a matter of fact the law schools did not apply their stated anti-discrimination policies to all recruiters. As I wrote here:
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.
….
… 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?
Chief Justice Roberts, alas, did not make this point. Maybe on another day….
