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Opinion
The Solomon Amendment in the Supreme Court

| 22 March 2006


Robert Post
 

When law schools began enacting policies forbidding employers who discriminated on the basis of sexual orientation from recruiting on campus, the United States military, which refused to hire gays and lesbians, appealed to Congress. Congress heard their cry and enacted the Solomon Amendment, which, in its present form, provides that all federal funds to a university will be withdrawn if any unit of that university refuses to provide to military recruiters access equal to that provided to other recruiters. Law schools typically receive little or no federal funding, but the universities of which they are a part are another matter. Berkeley, for example, received $292.5 million in federal research funding in fiscal 2005 (60 percent of all sponsored funding for the year) - grant monies that would be terminated if the campus refused to provide access to military recruiters. That is a very persuasive penalty.

An association of law schools and law-school faculties called FAIR (Forum for Academic and Institutional Rights) challenged the Solomon Amendment as an unconstitutional violation of the First Amendment rights of law schools, and on March 6, 2006, the Supreme Court announced its decision. Writing for a unanimous court (newly appointed Justice Samuel Alito not participating), Chief Justice John Roberts wrote a wickedly smart and seemingly comprehensive opinion blasting the arguments of the law professors. The court's judgment in Rumsfeld v. FAIR was, as Adam Liptak commented in The New York Times, "a shutout, a rout, a humiliation."

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Roberts created the impression of patiently and thoroughly sifting through each of the law professors' contentions and of finding them each inadequate. The Solomon Amendment, he said, does not prevent the law schools from speaking, for they "remain free under the statute to express" their disapproval of the military's discrimination. The fact that the amendment requires law schools to send out e-mails announcing the presence of military recruiters does not violate the First Amendment, because the Constitution permits the government to compel speech that is "incidental" to legitimately mandated conduct.

Neither does the presence of military recruiters on campus "affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions." The Solomon Amendment "does not sufficiently interfere with any message of the school," because the amendment does not restrict "what the law schools may say about the military's policies." Law students are perfectly able to appreciate the difference "between speech a school sponsors and speech the school permits because legally required to do so."

Nor does the statute violate constitutional rights of association, Roberts asserted, because the Solomon Amendment does not require a law school "to accept members it does not desire." Recruiters are "outsiders who come onto campus for the limited purpose of trying to hire students - not to become members of the school's expressive association." The statute does not alter the membership of a law school, "regardless of how repugnant the law school considers the recruiter's message," and it accordingly does not affect the associational rights of law-school members.

Roberts explained all this, and much else, in painstakingly clear prose, evidencing what a very formidable chief justice he seems destined to become. But unanimous Supreme Court opinions are always the most treacherous to interpret, because there is no dissent to expose the hidden cracks in logic and approach. The difficulties lie fallow, waiting to blossom in some future decision. This was especially true for Rumsfeld, where no justice undertook to call Roberts to task for ignoring, in his relentless march through FAIR's constitutional arguments, the one claim that really mattered, and that ought to have been the crux of the case.

I am referring to the contention that the Solomon Amendment infringes the academic freedom of law schools. Although formally located in the First Amendment, the constitutional right of academic freedom refers neither to speech nor to association. It concerns instead what Justice Felix Frankfurter, in a much-cited opinion, once called "the four essential freedoms of a university - to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." The most fundamental question raised by FAIR was whether the Solomon Amendment unconstitutionally interfered with the academic freedom of law schools to determine for themselves, on academic grounds, how law students were to be taught. This is an argument that Roberts never mentions, much less analyzes.

The function of a law school is to prepare its students for future professional practice. The court has itself stressed the "overriding importance of preparing students for work and citizenship" in legal education. The rules adopted by the highest courts of many states provide that it is professional misconduct for a lawyer to discriminate in employment on the basis of sexual orientation, and the codes of judicial conduct of more than 30 states prohibit judges from manifesting bias or prejudice based on sexual orientation in the performance of their duties. Instilling practical respect for, and commitment to, the norm of nondiscrimination is an important educational objective. Career-planning and -placement services form part of the pedagogical apparatus of a law school. They constitute part of the "hidden curriculum," which many believe affects law students' professional attitudes more than does a school's "formal curriculum."

I do not mean to imply that the academic-freedom argument is a dead-bang winner. Even if the Solomon Amendment does compromise the academic freedom of law schools, universities are not islands immune from all control of their academic practices. The strength of a state's interests in regulation must be also assessed, and the actual impact of state regulation on academic practices must be evaluated. No final judgment can be reached until all these factors are considered. It might well be that when all is said and done the Solomon Amendment should be found constitutional.

But the Supreme Court did not even ask these questions, much less pursue these inquiries. Chief Justice Roberts strikingly ignored the entire question of academic freedom, which has received constitutional protection from the federal judiciary for more than half a century. His opinion is as shrewd in what it refuses to notice as in the actual arguments that it advances. If Roberts really means to imply that universities have no academic freedom to protect their educational processes from overreaching state regulation, we are all in for a very bumpy ride.

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Robert Post is the David Boies Professor of Law at Yale Law School. A former clerk to Supreme Court Justice William J. Brennan, he holds a J.D. from Yale and a Ph.D. in the history of American civilization from Harvard. Between 1983 and 2003 he was on the faculty at Boalt Hall School of Law, where he solidified his reputation as an expert in constitutional law and a leading scholar of academic freedom. From 1992 to 1994 he was general counsel of the American Association of University Professors, on whose behalf last year he contributed to an amicus brief in support of FAIR's position in Rumsfeld v. FAIR.