Comments on the Solomon Amendment Ruling 

I wasn't going to blog about the recent Supreme Court ruling on FAIR vs. Rumsfeld, but as I read some other opinions around the blogosphere, I really got to thinking. First I'll say this. I'm all for the ends. I think that law schools keeping military recruiters out because of "Don't Ask, Don't Tell" is stupid and childish. I also think its hypocritical since they don't hold private law firms to any strict scrutiny when they're allowed to recruit. But with that said, is it still a correct ruling?

There are two things that bother me about this case in general. One is that this is yet another example of government blackmail. And second is the restriction on the freedom of association. When I got to thinking about these two things more, I found it harder to agree with this ruling, because I use these two arguments quite often when complaining about other things.

Government Blackmail: The federal government does this all the time. Why do we have seat belt laws in every state? Why was there a standard 55 MPH speed limit on freeways? Why is the drinking age 21? Why is drunk driving defined at a BAC of .08? It's not because states all got together, looked at the evidence and each decided on their own that these were good ideas. It was because the federal government tied federal highway and grant money to conditions, saying that if you didn't pass laws doing those things, you wouldn't be eligible for that money. But of course, your citizens will still be taxed, so that the money will go to other states that do pass those laws.

Of course, blackmail when done by a private citizen is illegal. But our government has absolutely no problem doing it, and does it quite often. In many ways the Solomon Amendment is just another example of this. If you want this government money which also goes to many competing law schools, then you also have to take military recruiters. While many of us agree that these schools should take in the recruiters, do we think its so important that we have to resort to blackmail to do it?

Freedom of Association: The law schools are arguing that they have a 1st Amendment right... that it is a form of speech... to refuse the recruiters. I think that's a bit weak myself. Allowing recruiters on campus does not imply that you agree with everything they do. But, a less strongly held right, but one generally accepted by most people, is a freedom to associate with whom you wish. Along with that is a right not to associate with you wish. For instance, in Boy Scouts vs. Dale, it was found that the Boy Scouts had the right to exclude a gay scoutmaster. More specifically, it was found that the court had to defer to the Boy Scouts judgement in which people would harm their organization, and violate their rights. So shouldn't we also have to defer to the law school to determine if their rights are being violated here?

Of course, this issue is not cut and dry. If we were to give any organization (private or public) the ability to associate with whoever they want, or not associate with whoever they want, no questions asked, then discrimination laws would be found to be just as unconstitutional. I don't think that would be a good result in this case. So where do we draw the line? When is it OK to discriminate, and when is it not OK?

To be honest, I just don't have any good answers here, only plenty of questions. I just know that this case is not as cut and dry as many make it out to be. While I do agree with the result, the means by which it came about seem very hairy to me.