Second-Class Civil Rights
By Peter Schuck’s NYT op-ed starts with a defensible premise, but reaches a conclusion I couldn’t disagree with more strongly. It should be said at the outset that I’m inclined to agree that the Solomon Amendment does not violate the First Amendment. Some of the arguments he uses to defend this proposition, however, aren’t very convincing. First, as I said before, his description of the SA as “a federal law barring federal funds to universities that deny the military the same access that civilian employers enjoy to recruit students” is problematic, because contrary to the implication that most of the universities in question have some sort of double standard it is the military that wants a special exemption from neutral rules. And his attempt to discern a contradiction between universities’ argument in thus case and their arguments in the recent affirmative action cases is pretty feeble question-begging; that case turns on the question of whether the policy is in fact discriminatory, and while one can disagree with their assessment it’s not an internal contradiction. Still, I do think he identifies one legitimate internal contradiction, and it’s one that for me is decisive:
The universities’ position on government threats to cut off financing to enforce public policies is also inconsistent. A quarter century ago, many universities argued that Bob Jones University’s tax exempt status and access to federal loans should be revoked because its racial policies violated civil rights law. Now the universities argue that their own funding should not be revoked for violating another federal policy. I think that’s right. But having made that particular case, he goes on to suggest that even of the university’s non-discrimination policy is unconstitutional, universities should abandon them. And on that count, I think he’s wrong:
Let us assume, which I seriously doubt, that the universities are right that Solomon violates their free speech rights in that it somehow “compels” them to associate themselves with “don’t ask, don’t tell” – even though they loudly oppose the policy and everyone knows this. A key moral question remains: Should universities like Yale, where I teach, place extra obstacles to military recruitment on campus?
In shielding students from military recruiters, universities disserve both their students and the military whose policies they hope to liberalize. They fail to treat students as mature adults who can weigh the evidence and make their own choices among employers without the universities’ thumb on the scales. They supposedly cherish diversity, but then reduce students’ exposure to a world view – opposition to gays in the military – that is the law of the land and is preached by some of the great religions to which many of the students subscribe. Everything he says here about “diversity,” of course, is equally applicable to all of the non-discrimination requirements. Presumably Yale’s law students are mature enough to make judgments about whether they want to work for an employer that won’t hire women or black people, but I somehow doubt that Schuck would take to the pages of the Times to urge law schools to drop those requirements. Schuck’s argument here is premised on the assumption that bigotry against gay people is more acceptable than other forms of bigotry, and that’s where I get off the bus.
Law schools certainly should do what they can to rid law firms of these irrational prejudices, and to argue that by allowing forms that practice rank discrimination to recruit on campus is to promote “diversity” is simply Orwellian. The federal government is, I think, within its powers to use its spending powers to promote its own values. But on the substantive (as opposed to constitutional) merits, the universities are clearly right, and the federal government clearly wrong.