December 02, 2004

Orin Kerr on What Dale Means for the Solomon Amendment Case

Since I know the Third Circuit's recent ruling on the Solomon Amendment interested Binky, I'm going to link to this post by Orin Kerr on how it relates to the Dale (Boy Scouts) case. The more I read about the Solomon Amendment case the more I am reminded of the fact that occasionally courts are confronted with a question on which there really is no obvious answer. There's precedent in a number of directions, and there's not really a "right" answer legally. Well, maybe there is. After all, I'm not a lawyer. But it's cases like these that remind me that there's often not just one legitimate answer that can be reached when you interpret the law. Multiple, conflicting arguments can be made about the Third Circuit's decision that strike me as making a good deal of sense.

Posted by armand at December 2, 2004 03:23 PM | TrackBack | Posted to Law and the Courts


no, see, do what the constitution says, not as it does.

(a position with obvious appeal to conservatives.)

Posted by: joshua at December 3, 2004 12:39 PM | PERMALINK

Joshua - does this mean you are taking sides in the Thomas vs. Scalia debate (at the moment I forget which one is the textualist and which one is the originalist)?

Posted by: Armand at December 3, 2004 01:07 PM | PERMALINK

okay, more seriously, i just looked over kerr's post, which was pretty detailed, and inasmuch as i've found him to be pretty neutral in the way he analyzes caselaw i'll take his interpretation of the solomon amendment case to be accurate and balanced.

armand, i do think that there are hard cases out there, and this may well be one of them. inasmuch as we permit the military to discriminate in various dimensions, it seems that we're saying the military is different somehow, and given its importance to the polity (at least trivially in regard to defense) it should be granted some latitude.

furthermore, i do believe the distinction kerr points out is a meaningful one, both abstractly and in effect. when i was in law school, i never mistook any organization recruiting on campus as a surrogate for the school's political positions, inasmuch as the school had any. there are conservative and liberal firms, governmental organizations that tend to appeal more to one side or the other, and all have their day. it's more like an MLA hiring convention, i imagine, than a debate in a public square.

contrast that with an organization that in some sense exists to promulgate a message, like BSA. love the message or hate it, if it's not federally funded it can get away with a certain amount of discrimination; indeed, as i submit is the case with BSA, the message itself may embed fundamentally discriminatory principles, and there's not much to be done about that. but BSA is the sort of associative group envisaged by the first amendment's plain language; it's not at all clear to me that any mainstream educational institution (i'm leaving room for things like various private religious schools which needn't be named) really has the same expressive or associative properties as BSA.

when you chose a school, you considered many factors, i imagine: faculty prestige and aptitude in the areas that interested you; price; resources; financial assistance; location; and so on. did anybody choose a (mainstream) school because it reflected a clear message? i don't think so.

that said, i think the military aspect of this case obfuscates the issue: why should a law school be compelled to tolerate from the military what it chooses not to tolerate from private employers? i mean, if the military, which manifests an express anti-gay policy, has to be allowed to recruit, than shouldn't private organizations that only hire men, or whites, or straights, also be allowed on campus? mightn't a contrary ruling (or under Dale a supreme court reversal, which is entirely possible) invalidate all such restrictions on first amendment grounds?

i agree with kerr re the doctrinal analysis, but i'm not sure it's enough. i'm probably missing a few things in any event, since i'm writing a lot and fast.

Posted by: joshua at December 3, 2004 01:11 PM | PERMALINK

Being so far out of my league and underinformed on this, I hesitate to even comment. However, there is something that nags me about this question. There seems to be a difference between "speech" and "recruiting." Given my experience with universities, I am under the impression that many of them employ a policy that no independent, non-affiliated group may "speak" at the university without being invited by some campus group. As an undergraduate I belonged to a pro-speech group and we would basically let in anyone who asked us, from the anti-GE Grandma to the Kill Your Television folks. This doesn't strike me as the same thing as recruiting. Recruiters generally are not invited by student groups, but my impression (again, impression) is that recruiters are always invited by the university (or the career center, as the university's representative). I understand that the legal debate is one over the speech rights of the university versus the rights of the recruiters to have access to the campus.

So, my question is, can any group just come set up shop and recuit on campus? From your link, Armand:"My own sense is that forcing a law school to allow military recruiters on campus one or two days a year is quite different from forcing a group that sees homosexuality as bad to keep a gay rights activist as a scoutmaster." Is this something that could be generally applied (e.g. Disney forces a campus with an anti-sweatshop manifesto to allow it to recruit) or is it military specific, as the military is part of the US government?

Posted by: binky at December 3, 2004 01:44 PM | PERMALINK

i'll note briefly that the solomon amendment itself is military specific: basically, an institution loses federal funds that doesn't permit the military to recruit on campus.

i fear it might be me who drove the debate astray with my undisciplined comments above.

i will note that this debate seems to run in parallel with one noted on volokh a few months ago (too lazy to dig it up) concerning a school that instituted a policy denying funds or rights or something to any student group that denounced the legitimacy of any other student group. naturally, this appeared to be interpreted broadly in practice, and thus threatened the very fibre of academic speech at that university. imagine how a pro-israel student group, its young student members full of piss and vinegar and insufficiently equipped for critical thought, might characterize in inflammatory terms the palestinians (or, to be clear that i'm grinding no axe here except as to free speech, vice-versa). a dreadful dreadful policy.

the reason i make the comparison is, frankly, i'm not sure i have a big problem with the solomon amendment. i do have a big problem with the military's policy, and i do want to see the message sent to them that official bigotry is no way to run a railroad, but i'm not sure going after the solomon amendment is the answer. going after don't-ask don't-tell directly is what we ought to do.

Posted by: joshua at December 3, 2004 03:55 PM | PERMALINK

Right, this I understand. I'm just curious about the whole recruiting thing in general. "i'll note briefly that the solomon amendment itself is military specific: basically, an institution loses federal funds that doesn't permit the military to recruit on campus." So then this implies that other types of recruiters can't wield the same kind of argument to get on campuses.

At our lovely State U. we have had problems around campus recruiting. Some firms that recruit here draw protestors. Protestors have been roundly squelched with several measures that echo some of the tactics that been used at Bush campaign rallies (only the converted are allowed in, etc). Basically, they quiz kids coming in the door to try to find out if they are there to be recruited or there to ask difficult questions during the presentation. Only the converted/believers are allowed in. One student I know was threatened with arrest by the campus po-po for asking a question about labor practices in a Q&A period of a recruitment session. Another student who had chalked questions/slogans on the sidewalk outside the building (of course, not being allowed in) was made (again by the campus po-po) to walk around and scuff/erase all the chalk under threat of arrest.

This is not, of course, the same issue, and rather seems to be one where recruiters' interests are more valued than the speech of protesting students.

Posted by: binky at December 3, 2004 04:25 PM | PERMALINK

so i'm not that lazy.

this is not what i was talking about, but strangely a propos.

see also, this, this, . . . oh well, i give up. i can't find the post i really wanted. but the others are interesting.

happy weekend, folks.

Posted by: joshua at December 3, 2004 04:29 PM | PERMALINK

binky, to my knowledge the solomon amendment in no way interferes with schools' rights to accept or decline any private industry -- or for that matter federal civilian -- recruiter they choose.

and while when it comes to enlisting grunts high schools and streets are fine places to recruit, when you want a JAG candidate, you pretty much have to go to a law school. given the liberal tilt of most law schools, a precedent set at one school might infect others, and make recruitment a much more difficult proposition both by denying ready access and by impliedly stigmatizing employment with the military.

Posted by: joshua at December 3, 2004 04:34 PM | PERMALINK
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