The wisdom of Solomon
Hypocrisy is a predictable aspect of politics. For instance, liberal activists badly want to overcome the federal law, called the Solomon amendment, that requires universities to allow military recruiters on campuses or lose all federal funding. Many universities want to ban the recruiters because of the "don't ask, don't tell" policy of the armed forces on homosexuality. So the activists resent the heavy hand of government telling campus officials what to do. Many of the same activists have a long record of imposing the same heavy and interfering hand when it suits them--for instance, applying Title IX in a way that requires colleges to eliminate hundreds of male sports teams, often to create more women's teams in sports that females do not want to play. Congress never intended this, but the activists found a way to get it done by establishing quotas and forcing the universities to comply.
On campus, extreme antidiscrimination regulations have long been the left's chief weapon in the culture wars, justifying everything from draconian speech codes to the defunding or de-recognition of religious groups on campus. Last week, in a 2-to-1 decision, the U.S. Court of Appeals in Philadelphia upheld a challenge to the Solomon amendment by lawyers and law schools. This came even though the amendment was closely modeled on Title IX. It said that if universities did not allow recruiters on campus, as Congress directed, the universities would lose all federal funding, which could run to hundreds of millions of dollars.
Shunning recruiters. In the 2-to-1 decision, the majority found that the government had compelled speech by requiring law schools to allow military recruiters and by forcing the schools to cooperate by setting up receptions and stuffing student mailboxes with fliers on military service. The schools argued that as "expressive associations" they were being compelled to say, in effect, that all campus job recruiters are equal, when they believe the military is antigay and therefore not equal. (Question: Do the administrators, professors, and students at a law school make up an "expressive association" any more than the coaches, players, and fans of the Green Bay Packers make up such a group?)
The government complicated its case with a post-9/11 revision of the Solomon amendment that required schools to actively assist military recruiters who visit campuses, just like any other recruiters, but the appeals court said that even the basic provision mandating bare access by the military was unconstitutional. This is a stark decision that very well may be reversed on appeal to the Supreme Court. The strongest argument against the law schools is that universities should defer to Congress's judgment in matters involving the armed forces, particularly in a period of great peril to the nation. In addition, it isn't clear as to who is compelling whom. The law schools say they are being compelled by government, but they are compelled also by the Association of American Law Schools, which directs them not to allow military recruitment. Imposed policy is wrong, except when you agree with it.