Solomonic decision

Posted by lex, on March 6, 2006

By an 8-0 decision today (newly installed Justice Alito didn’t participate), the Supremes gave the back of their collective hand to the notion, stertorously maintained by law school professors in certain elite universities, that allowing military recruiters the same degree of access as other firms somehow violated those professors’ freedom of speech and association rights. And by the way, pass us another slice of that government cheese, will you?

The 1995 Solomon Amendment (recently amended) told schools that they had a perfect right to exclude military recruiters from their campuses, so long as they didn’t mind giving up federal subsidies – not tuition assistance, but rather “funding from the Departments of Defense, Homeland Security, Transportation, Labor, Health and Human Services, and Education, and the Central Intelligence Agency and the National Nuclear Security Administration of the Department of Energy.”

But according to the Yale law school’s website:

In 1978, the Yale Law School faculty collectively adopted a Nondiscrimination Policy, which committed the School to stand against discrimination based upon sexual orientation. That policy grew out of faculty members’ deep conviction that neither the Law School’s educational mission nor their own individual consciences would tolerate teachers assisting deliberate discrimination against their own students.

No one told the professors that they had to celebrate the military, or it’s “don’t ask, don’t tell” policy (which is, in any case, Congressional policy). No one told them they couldn’t speak against the military in class or open fora, join protests, write placards, speak through their reproductive tackle in theatrical monologues, burn their bras or stage Uncle Sam puppet on stilts walk-a-thons against the military. They just couldn’t discriminate against military recruiters when providing commercial services to a prospective employer.

Couldn’t discriminate. Is that so hard?

And just out of curiosity, what message is going out when non-Ivy educated Pentagon lawyers take the best minds in the legal academy to the hole in an 8-nil SCOTUS decision?

Interestingly (for a unanimous decision) Justice Robert’s written opinion quoted Rostker v. Goldberg, 453 U. S. 57, 67 (1981) to say that “’judicial deference … is at its apogee’ when Congress legislates under its authority to raise and support armies.” The gravamen of this argument is to state that Congress could have compelled the schools to grant comparable access to military recruiters constitutionally, even without using the carrot and stick approach of withholding federal funds.

Which, wow.

But even though it could have done so, Congress didn’t craft the law in quite that way. And while I’m not unsympathetic to the notion that requiring law school professors to hold their noses and allow equal access to military recruiters, what with all of their heterodox opinions is an onerous burden, they still have the choice to say “no” to military recruiting. It will be an expensive decision, certainly, with non-tuition federal subsidies tipping the scales at over $300 million just at Yale.

Still, principles are important. Right?

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Filed under Best of Neptunus Lex, Carroll "Lex" LeFon, Carroll LeFon, Lex, Politics and Culture

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