Unwise and Unconstitutional Solomon
Because of the nightmare that is mail merge I haven't had a chance to blog about this, but Third Circuit on Monday ruled the Solomon Amendment unconstitutional (universities must allow military recruiters if they want to continue to receive Federal funding). I defer to Bashman for coverage of the ruling in the media and blogsphere (see here and here).
Earlier this year Phil Carter and Adam Soffen debated the issue on Legal Affairs website, and I commented on some points below. I will not be able to sit down and digest the court's opinion until winter break, and not having Con Law as a first year course here definitely impedes any detailed discussion. BUT, I have grave reservations about the wisdom of the ruling. I think Carter (kudos on his recent admission to the Bar) summed it up best:
The court's reasoning ("The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom. While no doubt military lawyers are critical to the efficient operation of the armed forces, mere incantation of the need for legal talent cannot override a clear First Amendment impairment") leaves little room for proponents of Title IX and other such programs.
Earlier this year Phil Carter and Adam Soffen debated the issue on Legal Affairs website, and I commented on some points below. I will not be able to sit down and digest the court's opinion until winter break, and not having Con Law as a first year course here definitely impedes any detailed discussion. BUT, I have grave reservations about the wisdom of the ruling. I think Carter (kudos on his recent admission to the Bar) summed it up best:
Unfortunately, I think your movement also ignores all the situations where this conditioning of government funding can have a positive effect. Title IX is a great example of where conditions on federal funding have been used to force schools across the nation to offer equal opportunity—the paradigmatic level playing field, if you will—to female athletes. The anti-Title IX forces have made arguments very similar to yours; fortunately, for women across America, they have lost. Similarly, what if the state of California, in a bid to enforce its progressive law on domestic partner benefits, required government contractors to give those benefits to their employees? Would you revolt then, or call that a good use of the spending power?
The court's reasoning ("The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom. While no doubt military lawyers are critical to the efficient operation of the armed forces, mere incantation of the need for legal talent cannot override a clear First Amendment impairment") leaves little room for proponents of Title IX and other such programs.
Labels: Court Cases, Law School
posted by Armen Adzhemyan at 2:39 PM
2 Comments:
Please explain the analogy. Title IX constrains, in the name of equal treatment, schools' decisions about how to use their resources. The Solomon Amendment constrains, in the name of aiding the armed forces, schools' decisions about who may recruit on campus. Are you saying that the two purposes should be treated the same? When a constutional right comes into conflict with some interst or purpose, the kind of interest or purpose matters. Some can legitimately constrain constitutional rights, while others cannot. Or are you assuming that rights are absolute? That all interests or purposes must be treated alike? What?
If I understand you correctly, then we're in complete agreement. Yes, first amendment restriction must be weighed against the countervailing interest, but I'm not particulary interested in the countervailing interest...this is for the courts to determine which interest warrants more or less restriction. My point is that the Third Circuit is weighing very heavily the restriction premised on Federal funding, which opens the door for challenges to Title IX, which had not been open before.
Again I'm not saying if JAG recruiters are to be kicked off then so should softball teams, but by shifting the burden on the government there are serious issues raised that even the most ardent first amendment supporter (me) would worry about. Of course there's the converse to this. Title I funds are used at the secondary education level to force military recruiters onto HS campus AND TO FORCE HIGH SCHOOLS TO RELEASE CONTACT INFO OF STUDENTS. How the interests here line up with Title IX? War effort? Mere phone call. I find this far more troubling than JAG recruiters on law school campuses.
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