Freedom and the Solomon Amendment

The law schools are learning the hard way of the downside of getting what they wished for. Maybe they’ll think twice about giving away powers.

Today the U.S. Supreme Court hears arguments about the constitutionality of the Solomon Amendment in Rumsfeld v. FAIR. The issue is whether the federal government can cut off funds to entire universities if schools choose to bar military recruiters because of the Pentagon’s “don’t ask, don’t tell” policy.

University of Minnesota Law School faculty members voted in March to join the Forum for Academic and Institutional Rights, an umbrella organization of law schools that oppose the Solomon Amendment. Apparently, the University’s Law School has not joined in the lawsuit against the Pentagon, presumably on the principle that discretion is the better part of valor. The plaintiffs charge that the Solomon Amendment represents an “unprecedented tying of massive amounts of federal grants to the renunciation of a dissenting stance by academic institutions.” But that is false and misleading. The critics of the federal government’s overreaching today ” law school faculty members and civil rights activists ” don’t tell you about their own roles in creating this overreaching in the first place.

In the 1980s, in the Grove City College case, the Supreme Court ruled that the federal government could withhold funds only from particular programs that didn’t comply with Title IX of the Education Amendments of 1972. It could not cut off funds to an entire university of which the program was a part. The ruling was greeted with outrage from the civil rights lobby. At the insistence of many law professors and civil rights activists, Congress quickly enacted the Civil Rights Restoration Act that gave the federal government the power to cut off all federal funding from noncompliant schools. (Little Grove City College did not discriminate; it simply wanted to avoid entanglement with the federal government). The Solomon Amendment was passed a few years later and was consciously modeled on the Civil Rights Restoration Act.

The same law schools that oppose a total cutoff under the Solomon Amendment still support total cutoffs of federal funds under Title VI of the Civil Rights Act of 1964 and Title IX. The law schools charge that their associational rights under the Constitution are under attack. Yale Law School’s Peter Schuck points out that, in 1983, when Bob Jones University lost its tax-exempt status and access to federal educational funds, the law schools “did not exactly fly to BJU’s defense. Many were indignant about government policies that in effect subsidized an institution that discriminated against blacks as a matter of religious principle.” The First Amendment applies to racists, too.

The law schools’ complaint cites their commitment to the “core value of judging people solely on their merits.” What imposters! Who has been racializing hiring and admissions for decades? Peter Schuck’s criticism of this hypocrisy is devastating: “Only a few months before suing DOD (Department of Defense) on the ground that Solomon prescribes an alien, illiberal conception of merit, the schools advanced a different view. In Grutter v. Bollinger, they persuaded the Supreme Court that the very same attributes that the schools now say bear no relation to merit can be used to discriminate against white and Asian applicants. It seems odd for the schools to insist that they may define merit in a way that disadvantages white, Asian, and indeed straight applicants (if schools deem other minorities or gays “diversity-enhancing’) but that the military may not define merit in a way that disadvantages gays. Just as the schools cite pedagogical diversity, DOD cites combat effectiveness. Neither of these claims is convincing, the relevant point here is that the schools, in the name of high principle, are defining merit as they choose and asking to defer to their institutional autonomy and expert judgment. At the same time, they deny the same deference to the institutional claims of the military … “

The law schools are learning the hard way of the downside of getting what they wished for. Some liberal constitutional scholars are worried that a victory for the schools might weaken Title VI and Title IX. Burt Neuborne, a New York University law professor and former legal director for the American Civil Liberties Union, says he warned against pushing for a total cutoff of federal funding to enforce Title IX: “I warned we wouldn’t be happy because it will mean the government gets to control whole universities.” Justice Frankfurter once called control of the hiring of faculty members and admission of students two of the “essential principles of academic freedom.” That sounds almost quaint after decades during which university faculty members and administrators have meekly acquiesced in detailed federal supervision of their hiring and admissions practices. It would be poetic justice if a victory for the law schools meant the beginning of the end of the federal government’s encroachment on academic freedom. Maybe, too, next time the critics of the Solomon Amendment will think twice about giving the federal government powers they wouldn’t want to see fall into unfriendly hands.

Ian Maitland is a professor at the Carlson School of Management and director of the Tocqueville Center. Please send comments to [email protected].