Sunday, May 15, 2005

Selective Standards, Solomon, and SALT III

One more twist to the saga on military recruitment in law schools. You will recall that the Society of American Law Teachers (SALT) and other plaintiffs have a case pending at the U.S. Supreme Court. The Solomon Amendment requires law schools that receive federal funds to treat military recruiters the same as other prospective employers. SALT says that this violates the law schools' free speech rights.

Along with SALT and other groups, the Association of American Law Schools (AALS) forces individual schools, as a condition of membership, to bar military recruiters. Those schools covered by the Solomon Amendment still must "ameliorate" the supposed effects of military recruitment, according to AALS. The amelioration can include refusing to eat lunch with JAG recruiters, or not giving them the best parking space. So much for freedom of expression among law schools and faculty! But that's not the only twist in this story.

Brian Nomi, my law school classmate and Army JAG Corps buddy, tried to engage in a little free speech of his own. In 1990, Brian formed a group called the Minnesota Free Speech Movement at the University of Minnesota. His group decided to invite a guest speaker to the law school. The topic of the speech? Opportunities in the Marine Corps for lawyers. The speaker? A Marine Corps recruiter.

Brian reports that the law school did not ban the speaker outright, but called the recruiter to "explain" the school's policy and suggest that his visit would not be a good idea. The recruiter ultimately did not speak.

Brian sued the University and the AALS, arguing that his First Amendment rights to receive information had been violated. According to the law student newspaper (9/1/02), a federal judge ruled that the University's practice of barring military recruiters -- whose regulations do not comply with the University's nondiscrimination policy -- satisfied the constitutional standards for restrictions on commercial speech. His appeal to the Eighth Circuit Court of Appeals was tossed out as moot in 1993, since Brian had already graduated.

To sum up, the position of SALT, et al, is thus: The choice to invite military recruiters to campus is a free speech issue. If so, how can AALS and other groups can force member schools to bar recruiters, consistent with this position? How can public universities can deny student groups the right to invite speakers who happen to be military recruiters? It seems that these actions undermine their argument that it is a violation of free speech to condition receipt of federal funds on equal treatment for military recruiters.

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