This case is an interesting one. The Solomon Amendment requires that colleges and universities allow military recruiters on campus in order to receive federal funding. The problem, though, is that many schools — including NYU Law — have anti-discrimination measures which bar discriminatory employers from recruiting on campus. So, for example, if a particular law firm had a policy of only hiring whites, they wouldn’t be allowed to come and recruit.
The JAG Corps, which recruit law students, operate under the same discriminatory “don’t ask, don’t tell” policy as the rest of the U.S. armed forces. This policy clearly violates NYU’s anti-discrimination standards, the same way a law firm that had a “don’t ask, don’t tell” policy for non-Christians would be in violation.
NYU has been at the heart of this issue for decades, as it was the first law school to include sexual orientation in its anti-discrimination policy. A decade later, the Association of American Law Schools required that this policy be applied at all accredited institutions. Now, an NYU alum is one of the people arguing Rumsfeld v. FAIR, the case against the Solomon Amendment, and NYU Law is one of the only FAIR-participating schools that is willing to be publicly named (other schools joined on anonymously; still others joined under “faculty of,” so that the university itself isn’t responsible).
Some argue that if a university’s anti-discrimination values are so strong, they should simply waive the federal funds and keep recruiters off campus. But it’s not that simple. When the Solomon issue first came up, NYU Law made the decision to forgo the federal money in order to continue their policy of non-discrimination. But the amendment was then expanded so that if one branch of a particular university barred recruiters, the entire university lost federal funding — so if the law school didn’t accept the federal funds, the entire university would miss out. This, obviously, is a problem at a school like NYU, where the law school is better funded by directed alumni donations than the rest of the university. And we aren’t talking about pocket change here — Harvard and Yale, for example, would each lose $300 million if they didn’t comply with Solomon.
Others would say that the school should leave it up to individual students to decide which organizations they interview with. But by allowing a group to recruit on campus, the school is tacitly approving it. Should we allow “whites-only” companies to recruit here, and let students make up their own minds? I would argue that a consistent anti-discrimination policy sends a tough message to employers that discrimination will cost them — indeed, anti-discrimination policies were key in integrating women and people of color into the workforce (although it’s worth noting that law firms, especially the big ones, are still run primarily by white guys).
The military claims that they’re desperate for recruits, and interviewing on campus is key to their survival. That’s all fine and good, but if you’re so in need of good employees, stop discriminating against gays and lesbians. You’ll have a whole new pool of people to recruit from, and you won’t have to deal with progressive universities shutting you out, or students protesting your presence on campus (last year, when the JAG recruiters came, OUT-LAW members and other law students protested so loudly that the recruiters left early).
But this is all just background. The real issue in the case is the First Amendment rights of universities, specifically freedom of speech and association. And unfortunately, it looks like it’s a losing one. The government is making the argument that raising a military is a compelling Constitutional interest, and that raising a military requires recruitment. They say that universities are welcome to use their right to free speech and association by barring recruiters from campus; they aren’t being required to have the military there, they just stand to lose federal funds if they don’t. The FAIR attorneys argue that, when we’re talking about hundreds of millions of dollars that the university needs, the policy is deeply coercive — particularly since the entire university loses funding if even a single, generally separate branch like the law or medical school refuses recruiters. But from the Supreme Court justices’ responses so far, it doesn’t look like this argument is getting very far — and it’s being argued that it could set a dangerous precedent for other accept-it-or-lose-funding federal rules, like No Child Left Behind and Title IX.
I’m obviously hoping that law schools will retain the right to reject discriminatory recruiters, without financially punishing the entire university. We’ll see what happens. I’ll be writing more about this in the coming days.
WSJ, SCOTUSblog, the blog of the American Constitution Society, and Law Dork have more.