I guess I've been commenting enough over at the UChicago blog that I may as well write my own post about this.Professor Stone
argues that Chief Justice Roberts' point about government funding proves too much. To say that the government can condition grants of funding on certain actions would certainly in some cases violate the Constitution. If, for instance, the government required law schools to periodically post banners proclaiming "The U.S. government rocks my world!" in order to continue to receive federal funds, this would be obviously unconstitutional. I'm not quite sure that Stone's argument fits here, though. The argument presupposes that requiring the law school to host the military violates a constitutional right. It's probably true that the government can't condition receipt of federal funds on the surrender of constitutional rights, but first you must prove that such a right is being surrendered.
In addition, there's another point to be explored: government employees often have their constitutional rights, such as freedom of speech and religion, limited to the extent it could interfere with their jobs. Public school teachers, for instance, aren't allowed to say whatever they want in their position as teachers. Judges aren't allowed to post the Ten Commandments on their walls. Regardless of whether this is a good thing (and there's a fair argument that it isn't), constitutional jurisprudence holds it legal. If law schools can be likened to government employees in that they receive federal funds, their free speech/free association claim could fail with a "thud," as it by all appearances seems likely to.
Ariela Dubler and John Witt of Columbia Law School have an interesting argument
about a potentially successful approach for law schools challenging the controversial Solomon Amendment. They point out that there's an argument to be made, from the text of the Solomon Amendment itself, that they're absolutely giving equal access to military recruiters: following the rule of Washington v. Davis
, equality only requires equal opportunity, not equal outcomes. If, for instance, a test administered to whites and blacks resulted in different median scores for both races, as long as the test itself was identical and administered in an identical manner, the law deems this "equality." Thus, applying equally a rule to recruiters that they not discriminate does not run afoul of equality concerns just because some recruiters are thereby excluded. The reason, they hypothesize, that schools are not taking this approach is that they fear the federal government could simply rewrite the statute to require on its face that law schools permit military recruiters on campus.
To solve this problem, I would take their argument a bit further. If, by virtue of their receiving federal funds, the law school becomes to some extent an agent of the government, then the law school is thereby obligated to uphold the Constitution. Any action the law school takes to infringe on its students' constitutional rights is thereby actionable under 42 U.S.C. 1983. Therefore, if a law school actively participates in the recruitment activities of an employer who openly discriminates against homosexuals, it could in effect be infringing on the constitutional rights of its homosexual students (this, of course, presumes either that such discrimination fails rational basis muster, which unfortunately the court will find it doesn't, or that Lawrence v. Texas
subjects discrimination against homosexuals to at least intermediate scrutiny, which it probably does). Thus, the government cannot require it to allow military recruiters on campus.
Similarly, the law schools could argue that, by forbidding military recruiters on campus, they're not discriminating against the military or infringing its
rights to free association. Rather, they're meeting the standard rule of neutral reason, neutral manner for incidental freedom infringement. The Washington v. Davis
test requires both facial and underlying equality -- that is to say, if an action is neutral on its face and doesn't have an insidious motive, it's permissible. The Lemon test for religious freedom requires a law to be neutral on its face and to have no particular motive pro- or counter-religion (it also has an effects test, but it's inapplicable here largely since people aren't as terrified of issues dealing with discrimination as they are of those touching on the subject of religion). Even limitations on speech are permissible if they're neutral as to content and viewpoint and have as their purpose some other legitimate goal. The law schools' exclusion of the military would meet any of these tests. Surely something analogous should be applicable here?
There are, of course, problems with this approach, since law schools probably participate in some other activities for which they certainly don't
want to be considered agents of the government. It's possible that legal scholars and researchers more brilliant than I could devise a way to limit this characterization to help the law schools prevail in their counter-Solomon argument but not prevent them from carrying on other typical law school activities. I do think, however, that it could be a plausible way to defeat the Solomon Amendment on grounds that don't require the law school to say it's trying to disagree with the government through its actions. You can't burn a draft card on these grounds, and the law schools look likely to fail here too. I personally would like to see them win this one. The military's policy is baseless, outdated, archaic, and immoral. If there's any way to stick it to 'em that doesn't bastardize our constitutional jurisprudence, I'm all for it. What strikes me as particularly disingenuous is the military's bemoaning its inability to recruit sufficient troops, yet its hardline stance as to "just who" is acceptable. Look, guys, beggars can't be choosers. And excluding gay people is just homophobic, sexist, and retarded.
My mom, from whom I inherited my wacky sense of humor, argued with me about whether law schools should be forced to accept military recruiters. I pointed out to her it wasn't simply a matter of giving them a room on campus: law school career services offices are fundamentally integrated into the mechanics of the recruiting process. I argued that requiring them to allow a certain recruiter on campus requires them, on some level, to perform a service for those employers, implicitly or arguably explicitly conferring approval of these employers as suitable for the student body. It's the only real self-help measure available to the schools to demonstrate that they consider the openly gay members of their student body to be just as important and valued as the non-gay students. How else, I asked, were they supposed to change things? Mom thought about it for a minute before answering: the law schools could start up their own militaries!
Boy, that gives new meaning to fighting The Man.