Solomon Amendment

[Bernard Bell]

Intriguing question.  My intuition leads me to think this is a much tougher case.  Basically, the Spending Clause grounds for your hypothetical statute and the Solomon Amendment are troubling because the purposes of the funding being conditioned is unrelated to recruiting military personnel.  Given the almost compete lack of any  nexus between the purpose of the funding and the condition imposed on recipients, it seems to me that some significant justification should be provided for upholding the funding limitation.  Preventing the military from being treated worse than most employers, because schools have gotten together to, in effect, protest Congressional and Executive Branch decisions about the composition of the military, is a strong justification for a funding condition otherwise unrelated to the purposes of the funding program.  The argument in favor of the hypothetical statute that the United States should force schools to provide space for recruiting regardless of whether they provide space for other recruiters, is a much weaker justification for a funding condition.  (Granted, most educational institutions surely provide some accommodations to at least some recruiters, but in the hypo the frequency and quality of access are completely unrelated to access by any other recruiters.)  So your hypo points out, at least for me, that the "equal" access argument (which is, of course, highly contestable as the emails in this thread have demonstrated) is critical to the Government's argument.
   (I don't know if this is what you had in mind when you crafted the hypo --- it wasn't clear to me which of Prof. Laycock's positing you were responding to.)

Regards,

Bernie Bell

Bernard W. Bell
Associate Dean for Faculty
Professor & Herbert Hannoch Scholar
Rutgers Law School-Newark
123 Washington Street
Newark, NJ 07102
(973) 353-5464 (voice)
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bbell at kinoy.rutgers.edu


>>> <JMHACLJ at aol.com> 12/07/05 12:17PM >>>
I wonder.
 
Suppose the enactment of the following:
 
Recipient institutions shall certify, as a condition of receipt of federal  
funds, that their component departments, programs, colleges, schools and  
campuses provide an appropriate facility for the activities of visiting military  
recruiters.  The Departments of Education and Defense shall have authority  
hereunder to promulgate regulations necessary to determine the frequency and  
duration of recruitment activities.  Appropriate facilities do not  include those 
that are constructed, devised, or maintained in such a manner as  to 
interfere with the recruitment function.
 
Would this pass muster?  Why or why not?
 
Jim Henderson
Senior Counsel
ACLJ