Professors debate federal power to coerce states

Bryce Haugen

Before a packed Law School auditorium Tuesday, two constitutional law professors sparred over the controversial Solomon Amendment.

The amendment, tacked onto a 1996 energy and water development appropriations bill, requires universities to allow military recruiters on campus. Schools that refuse are ineligible for federal funding, totaling $35 billion a year, the amendment states.

The debate will move to Washington, D.C., in December, when the Supreme Court begins considering the amendment’s constitutionality.

Since it was passed, the Solomon Amendment has faced opposition from some public and private colleges nationwide. Because of the military’s policy prohibiting open homosexuals from military service, schools that see that policy as discriminatory have said the amendment violates their constitutional rights to freedom of expression.

The Federalist Society, which sponsors the event and four others each semester, is all about “exchanging ideas and fostering debate about some of the most pressing legal issues,” said Jason Adkins, president of the University’s chapter.

More than 300 law students filled the auditorium Tuesday, overflowing into the aisles.

The debaters, conservative University law professors Michael Paulsen and Dale Carpenter, both said they dislike the military’s “don’t ask, don’t tell” policy. But much of the 45 minute discussion – each professor had one speech and one rebuttal – focused on their key disagreements: Whether public universities have free-speech rights and whether the federal government should use money to coerce states.

Paulsen, who spoke in favor of the amendment, said the First Amendment applies to private individuals and groups, not to public entities.

“The University of Minnesota’s Law School, for instance, does not have expressive rights,” he said. “It is a limited public forum that may not deny access based on content or viewpoint.”

If the University had the right to discriminate against recruiters, he said, it could also discriminate against other groups – something the nation’s top court has repeatedly rejected.

But Carpenter, The Federalist Society adviser, said public universities have a strong argument that they have expressive rights.

“It requires law schools to permit the very discrimination they condemn,” Carpenter said.

He also expressed dismay at expanding federal power. He said “in a Paulsenian world,” things as absurd as requiring sworn allegiance to America before receiving tax rebates would be constitutional.

“Onerous funding restrictions,” such as the amendment, will one day come back to haunt conservatives,” Carpenter said.

“When that happens I think a lot of conservatives will look around wondering what happened to the Constitution,” he said.

Paulsen said that because state universities aren’t “entitled” to any federal money, the national government can be as “coercive” as it wants. He said many laws, including civil rights legislation, are enforced in this way.

First-year law student Bryan Seiler said the debate was close and interesting. He said Paulsen was compelling, but that he agreed more with Carpenter.

“I think it’s great to hear well-reasoned arguments on both sides,” he said. “It’s rare.”