Friday, May 13, 2005

Selective Standards, Solomon, and SALT

The U.S. Supreme Court has granted certiorari to hear a case on the Solomon Amendment decided by the Third Circuit Court of Appeals. The Solomon Amendment requires law schools that receive federal money to provide military recruiters the same access to law students as other prospective employers. The Third Circuit held that such a requirement violated the First Amendment rights of the law schools themselves, relying in part on the Supreme Court's 2000 ruling that the Boy Scouts could not be required to accept homosexuals as part of the group's leadership.

One of the plaintiffs in the Solomon Amendment case is the Society of American Law Teachers (SALT). SALT was formed in 1973 because, among other reasons, the American Association of Law Schools was not liberal enough (!) for some law professors. In addition to publishing faculty salary comparisons, SALT is involved in the usual leftist struggles, from keeping the bar exam sufficiently easy to pass (thus being fair to minorities), to maintaining robust affirmative action programs. One of SALT's recent projects was a friend-of-the-court brief in the Boy Scout case. SALT argued that the New Jersey's anti-discrimination statute did not infringe on the First Amendment rights of the Boy Scouts. In the Solomon Amendment case, SALT relies on the Boy Scout ruling. And the group's reasoning, by implication, calls into question other government funding with strings attached, such as Title IX.

SALT's position is not completely inconsistent, as its brief seeks to distinguish the First Amendment expression of the law schools from that of the Boy Scouts. But the arguments in combination do lead one to scratch one's head. Consider these excerpts from the SALT Boy Scout brief:

The Boy Scouts are not like the Ku Klux Klan. They are not an organization whose central self-definition requires exclusion of openly gay youth and men....

In this regard, the Boy Scouts are usefully contrasted with the Ku Klux Klan. The latter group is expressly organized around an exclusionary principle of white supremacy. To require the Klan to admit blacks would substantially undermine the Klan's central expressive purpose. But to their credit, the Boy Scouts, a huge inclusive organization numbering millions of members, are not the Ku Klux Klan....

So the Boy Scouts are not like the KKK? Gee, thanks. But does this mean that law schools are like the KKK?

3 Comments:

Anonymous Anonymous said...

If the government cannot use federal funds to compel recipients to behave in a certain way, the liberals may not like the results. That is one of their favorite ways, I thought, to impose many policies, rules, and restrictions on the states or institutions!

July 26, 2005 7:47 AM  
Anonymous Sam M said...

You might want to note that the Supreme Court ruled against the SALT position in the Boy Scouts case (Dale). The Court accepted the Scouts' claim of a First Amendment right to exclude those whose association would be inconsistent with their expression. In light of that result, the law schools challenging the Solomon Amendment have a strong case, and it will be entertaining to see Scalia, et al., wriggle out from under what they said in Dale.

As far as imposing restrictions on the states is concerned, that is completely different han imposing them on a private entity. Private parties have First Amendment rights to assert against those restrictions. State and local governments do not.

July 26, 2005 11:41 AM  
Blogger John Thacker said...

In light of that result, the law schools challenging the Solomon Amendment have a strong case, and it will be entertaining to see Scalia, et al., wriggle out from under what they said in Dale.

No, it's quite a different matter because it's a use of Congress's Spending Power. The case in Dale was not about Congress putting forth requirements that the Boy Scouts would have to meet in order to receive federal funding. Justices Scalia et al. agreed that Congress could set rules on what sort of artists received NEA funds, for example. Similarly, the Federal Government has long imposed a variety of other rules on schools seeking federal funding-- including on universities that admit students who receive federal financial aid. (That's why students who attend schools like Bob Jones University can't get federal financial aid. Similarly, students of Hillsdale College, since it refuses to comply with affirmative action legislation, also cannot receive federal financial aid.) That's the type of case we're dealing with. It's quite obviously distinct from Dale.

July 26, 2005 5:12 PM  

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