Solomon Amendment

J. Noble jfnbl at earthlink.com
Fri Dec 9 14:23:14 PST 2005


The order would enjoin the government's withholding of federal funds 
based on the banning of military recruiters. Unnamed plaintiffs, if 
they're not charter members of FAIR, probably couldn't get a contempt 
order, but judgment on the pleadings under the doctrine of collateral 
estoppel would be a slam-dunk.

Re Paul's sympathy toward drawing a distinction between the military 
and the federal government as accountable for the offensive 
discrimination: Doesn't the Solomon Amendment, by prohibiting the 
disbursement of federal funds through any and every federal agency, 
establish that the targeted boycott of military recruiters is not 
only misdirected, but feckless. If the symbolic battleground might 
have been confined to military recruitment as a symbol of the 
discriminatory policy, doesn't the SA make the entire government 
actively complicit; and doesn't it signify an escalation that demands 
a proportionate response? If the government prevails in FAIR v 
Rumsfeld, it will bring the law schools to their knees. The law 
schools are armed with symbolic speech, but the government has the 
nuclear option. If the law school policy represented the demands of 
law students who want jobs, instead of the wishful thinking of 
faculties that have tenure, and the boycott extended to federal 
employment by the White House Counsel and Attorney General, as well 
as the Judge Advocate General, to the Senate Armed Services Committee 
and House Appropriations, as well as DOD's Office of Legislative 
Affairs, the speech wouldn't be symbolic, and the symbol wouldn't be 
a joke.

John Noble

At 10:41 PM -0500 12/8/05, <wasserma at fiu.edu> wrote:
>A somewhat related procedural question is the scope of the injunction that
>might issue in the case if the determination that the SA is unconstitutional
>were to stand.  The plaintiff, and thus the proper beneficiary of the
>injunction against enforcement of federal law, is FAIR.  But any injunction
>against enforcement of the SA necessarily runs to the benefit of the law
>schools and universities as entire entities, which are the ones that 
>get to keep
>their federal funds.  Injunctions often run beyond just the 
>plaintiffs or to the
>benefit of non-parties.  But the remedial link to the non-parties seems a bit
>unusual in this case.
>
>The issue about the scope of the injunction came up in a panel on this case at
>the AALS Conference last January.  At the time, I thought that the Court might
>try to reject this case on such procedural grounds and thus avoid the need to
>either overturn the federal statute or impose express limits on Dale--much
>as the Court did with "Under God" in Newdow.  But none of these arguments
>came up either in the briefing or in the argument.
>
>Howard Wasserman
>FIU College of Law
>
>
>
>>
>>  From: "Paul Horwitz" <phorwitz at hotmail.com>
>>  Date: 2005/12/08 Thu PM 01:42:47 EST
>>  To: jfnbl at earthlink.com,  conlawprof at lists.ucla.edu
>>  Subject: Re: Solomon Amendment
>>
>>  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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