Solomon Amendment

Paul Horwitz phorwitz at hotmail.com
Thu Dec 8 10:42:47 PST 2005


I don't have a detailed response to your very detailed post, but would 
second the view that the standing issues were perhaps more interesting than 
the space allotted them in the courts below, at least to the extent they 
rested on First Amendment claims and particularly to the extent that 
academic freedom issues were raised in the case, however implicitly.  There 
is an interesting parallel between the law schools' apparent distinction 
between military as employer and government as employer (to which I am 
clearly more sympathetic than you), and the distinction between law 
professors or students as plaintiffs and law faculties as plaintiffs -- let 
alone universities as plaintiffs, given that the Solomon Amendment penalties 
potentially affect the university as a whole.  Who, really, is the injured 
party here?  And to the extent academic freedom interests were tied up with 
this case, who gets to assert them?  Why should even a voting majority of a 
law school faculty be entitled to claim the mantle of academic freedom on 
behalf of a subentity of a larger university, in the absence of any official 
stand by either the subentity or the larger university?

Paul Horwitz
Southwestern University School of Law
Los Angeles, CA




>From: "J. Noble" <jfnbl at earthlink.com>
>To: conlawprof at lists.ucla.edu
>Subject: Re: Solomon Amendment
>Date: Wed, 7 Dec 2005 21:56:22 -0500
>
>At 7:32 PM -0600 12/6/05, Paul Horwitz wrote:
>>Congress in general and the federal government do not discriminate on this 
>>basis when hiring and retaining staffers; the military does, , at least to 
>>the extent that one falls afoul of DADT
>
>That can't be right. It's the federal government that is engaged in 
>discrimination, both de facto and de jure, when federal law prohibits gays 
>from serving in the military. The military discriminates much like the bus 
>driver who told Rosa Parks to move to the back of the bus, and the police 
>officer who arrested her when she refused, but discrimination codified in 
>the Montgomery City Code or the U.S. Code is by and under the authority of 
>the government that legislates a segregationist policy. The notion that the 
>military discriminates, but the federal government does not, stems from a 
>view of the government as an agglomeration of fully-separate subsidiaries, 
>instead of the conglomeration of fully-integrated, wholly-owned 
>subsidiaries that it is.
>
>The law schools' protest against the segregation of gays in federal jobs is 
>akin to boycotting the seats in the front of the bus. If law schools don't 
>see that, it's because they view a military career as the back of the bus 
>(which strips their protest of any moral authority at all). The law schools 
>credit the federal government with letting gays sit up front; but to a gay 
>high school graduate who wants a military career and has to settle for a 
>job running a copier in a closet as a GS-5 at DOJ, it's the back of the 
>bus.
>
>You're still right, though, that it's not a legal argument. If the schools 
>have a First Amendment right that trumps the spending clause, it protects 
>empty gestures -- if only empty gestures. If it wasn't an empty gesture, 
>state schools would be in court defending against the First Amendment 
>claims of students who want access to military recruiters, alleging a real 
>burden on a real association. If it wasn't an empty gesture, the private 
>schools that all went to a meeting and voted to exclude military recruiters 
>from competitive access to the market for new lawyers (in their original 
>sealed containers), and to restrain competition among law students in the 
>legal job market, would also be in court -- under indictment for a 
>conspiracy in restraint of trade. If it wasn't an empty gesture, the 
>Solomon Act would rest on the 14th Amendment and the Commerce Clause, 
>instead of the Spending Clause.
>
>This litigation is just gaseous. The Government abandoned a meritorious 
>standing argument on appeal, apparently because they were over-confident 
>that the Court of Appeals would affirm. The Court of Appeals dispensed with 
>the critical unconstitutional conditions issue in a single paragraph before 
>devoting 40 pages to protecting the symbolic speech of anonymous 
>institutions who refuse to be publicly identified with the message they 
>claim is symbolized by a policy they refuse to publicly acknowledge, which 
>was adopted by whatever fraction of the faculty cared enough to show up for 
>the vote, and which didn't become symbolic speech instead of conduct until 
>pro bono lawyers filed a symbolic lawsuit in the name of a symbolic 
>plaintiff.
>
>The best outcome here is a DIG on a sua sponte determination that FAIR 
>didn't establish standing and there's no case or controversy. The worst 
>outcome is an expansive elaboration of Spending Clause authority on really 
>bad facts -- military recruitment during wartime -- and the evaporation of 
>the unconstitutional conditions doctrine. The First Amendment issue, 
>however it is resolved, will have no discernible real consequence for 
>anyone -- unless there's a law student someplace interested in defending 
>gay soldiers in court-martial proceedings, or advising the Secretary of 
>Defense on the treatment of prisoners under international law, but who ends 
>up at the IRS  -- in the collections department of USA, Inc., which budgets 
>a lot of money on a security office that won't hire gays and a litigation 
>department that defends segregation -- wishing he had a seat up front.
>
>John Noble
>
>
>
>At 7:32 PM -0600 12/6/05, Paul Horwitz wrote:
>>I've seen this argument both here and on Eugene's blog, where it's 
>>discussed at greater length.  It may have some merit as a moral 
>>proposition -- as an argument that suggests that the law schools lack 
>>moral courage and are betraying their elitist unwillingness to give up 
>>student access to government jobs they value more highly. But I'm still 
>>unconvinced that the argument has much merit as some kind of legal 
>>argument applied to the facts of this situation.
>>
>>The question is not one of barring recruiters to make a general moral 
>>statement, in which case one might want to bar recruitment by Congress as 
>>well (on a sort of Al Pacino-ish "the whole damn system is out of order!" 
>>basis).  Rather, it's one of barring access to employers who actively 
>>discriminate on the basis of defined categories including sexual 
>>orientation.  Congress in general and the federal government do not 
>>discriminate on this basis when hiring and retaining staffers; the 
>>military does, at least to the extent that one falls afoul of DADT (which, 
>>given the way it's enforced, can happen quite easily).  People can join 
>>the military and argue for or against a change in DADT, but can't be 
>>openly gay; they can join Congress and the federal government and argue 
>>for or against a change in DADT, whether or not they're gay.  Similarly, 
>>if Congress accepted job applicants of all races but the military was 
>>still segregated, although elements within the military (and Congress) 
>>were debating the policy, it would not seem crazy to me to keep the 
>>military off campus but allow Congress to recruit -- at least if the point 
>>is not to protest an underlying policy but to ensure that any employer who 
>>comes on your campus is equally interested in and willing to hire all of 
>>your students without respect to certain defined criteria.
>>
>>So it seems to me that, whether or not the law schools display a lack of 
>>moral courage (and one can certainly make the case that they do), the 
>>differing impact of the non-discrimination policy as between Congress and 
>>the military is not irrational or indefensible.
>>
>>Paul Horwitz
>>Southwestern University School of Law
>>Los Angeles, CA
>>
>>>From: "J. Noble" <jfnbl at earthlink.com>
>>>To: "Marty Lederman" <marty.lederman at comcast.net>, 
>>><DavidEBernstein at aol.com>,        <SLevinson at law.utexas.edu>, 
>>><conlawprof at lists.ucla.edu>
>>>Subject: Re: Solomon Amendment
>>>Date: Tue, 6 Dec 2005 19:48:19 -0500
>>>
>>>At 4:08 PM -0500 12/6/05, Marty Lederman wrote:
>>>
>>>>Yes, Congress, not the military, is principally to blame.  So?
>>>
>>>So isn't it the United States of America, by act of Congress, that is 
>>>engaged in the discrimination -- not only principally to blame, but 
>>>wholly to blame for the harm caused? If a law firm hired black criminal 
>>>lawyers to represent black defendants in front of black juries, but only 
>>>hired white lawyers to work in its securities practice because Wall 
>>>Street isn't comfortable with black lawyers, would the policy allow the 
>>>firm to recruit criminal lawyers but not securities lawyers? The 
>>>discrimination here is by the United States -- we'll hire gay lawyers, 
>>>but we won't let them wear their country's uniform. The law schools' 
>>>response -- we'll help you hire gay lawyers as long as they can't wear 
>>>uniforms -- would only be irrational if it wasn't also complicit.
>>>
>>>Barring military recruiters from access to students -- even gay students 
>>>who might want to join the military, live with the policy, and defend gay 
>>>soldiers in court martial proceedings -- while welcoming the Justice 
>>>Department's recruitment of lawyers to protect and defend the United 
>>>States' continued discrimination, reveals the policy as an elitist pose. 
>>>Law students are told from day-one that even the worst criminals are 
>>>entitled to the best defense. Maybe there should be a caveat -- while 
>>>there's prestige in representing the Mafia Don who ordered the hit, we 
>>>don't train lawyers here to represent thugs who actually kill people.
>>>
>>>John Noble
>>>
>>>At 4:08 PM -0500 12/6/05, Marty Lederman wrote:
>>>>With all respect, this is nonresponsive.  If there was any 
>>>>unconstitutional conduct here, it's the action of Congress, not the 
>>>>military, in enacting the SA.  And the conduct that causes the military 
>>>>not to be able to offer the nondiscrimination pledge is Congress's 
>>>>handiwork, too.  The fact that the military is statutorily required to 
>>>>discriminate against gay and lesbian students doesn't change the fact 
>>>>that it does, in fact, discriminate against gay and lesbian students, 
>>>>and thereby cause the harms that the schools are wishing to avoid (and 
>>>>not to facilitate).  Yes, Congress, not the military, is principally to 
>>>>blame.  So?
>>>
>>>>----- Original Message -----
>>>>From: <mailto:DavidEBernstein at aol.com>DavidEBernstein at aol.com
>>>>To: <mailto:SLevinson at law.utexas.edu>SLevinson at law.utexas.edu ; 
>>>><mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu
>>>>Sent: Tuesday, December 06, 2005 3:58 PM
>>>>Subject: Re: Solomon Amendment
>>>>
>>>>How is the military supposed to give this nondiscrimination "pledge" 
>>>>when it is obligated to obey civilian authorities who have ordered it to 
>>>>obey "Don't Ask, Don't Tell"?
>>>>
>>>>In a message dated 12/6/2005 3:46:50 PM Eastern Standard Time, 
>>>><mailto:SLevinson at law.utexas.edu>SLevinson at law.utexas.edu writes:
>>>>
>>>>The law
>>>>schools in question are willing to give "military recruiters [exactly]
>>>>the same access to students that it gives to other potential employers
>>>>on campus," which requires only a pledge that they not discriminate
>>>>against gays and lesbians.
>>>>
>>>>
>>>>David E. Bernstein
>>>>Visiting Professor
>>>>University of Michigan School of Law
>>>>Professor
>>>>George Mason University School of Law
>>>>http://mason.gmu.edu/~dbernste
>>>>
>>>>
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>>
>>
>>>_______________________________________________
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>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as 
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