Coyote Blog

I must say I was not at all surprised that the Solomon amendment (requiring private universities that accept federal funds to also accept military recruiters) was upheld by the Supreme Court.  I predicted months ago that the left had made its bed on this issue with its strong support of Title IX.

Various law school faculties argued in the case that the Solomon Amendment unconstitutionally violated their rights to freedom of association (by taking away their choice of who can and cannot recruit on campus) and of speech (by forcing the university to support speech, such as military recruiting pitches, that it does not agree with).  I must say that I am both sympathetic and unsympathetic to their argument.  Sympathetic, because there are in fact free speech and association issues here.  The majority opinion notwithstanding, its impossible to make a razor-sharp distinction between prohibitions on "conduct" and prohibitions on expression.  I can't accept Robert's blanket statement that "unlike a parade organizer's choice of parade contingents, a law
school's decision to allow recruiters on campus is not inherently
expressive."  What if, say, Al Qaeda wants to set up a booth?  My accepting their booth would sure as hell be a form of expression, one that I am sure the Right would blast me for. 

I do understand that there is money involved, and the fatuous answer is that "well, they can just turn down federal funds."  Bullshit.  Like it or not (and I don't) the feds have made themselves so ubiquitous, particularly in certain research areas where they have crowded out all private funding, that it is unrealistic to tell them to take a hike.  Though I must say that it is interesting to see the left, which built this huge federal machine, hoist on their own petard.  Besides, the majority opinion said that the funding tie-in was not necessary to pass constitutional muster -- that the government had the power to just straight out compel private universities to accept military recruiters.

However, mostly I am unsympathetic.  Why?  Because these very same ivy league and faculty intellectuals have felt free in the past to step all over the free speech and association rights of the rest of us in similar ways.  As George Will asked in recent column, it would be fascinating to see what percentage of these same people who brought this suit in turn vehemently support, say, McCain-Feingold?  Or, public funding of election campaigns. 

As a business person, this ship sailed years ago.  Freedom of association no longer applies to business people.  The reason?  Well, freedom of association implies the reverse right of not associating with anyone you choose.  But there are phone-book-sized bodies of legislation today with detailed regulations telling me all the people and circumstances in which I cannot choose whom I associate with, or don't associate with (via employment decisions, for example).  For example, my business employs RV'ers who live full-time on the road and form a large transient labor force.  I have tons of applications every year from Canadian and Mexican citizens who would like to work for me, but I cannot hire them.  On the other side of the coin, I have had to actually go to court from time to time to justify why I chose not to hire or to fire someone who is a woman, or older, or handicapped.

And forced speech with which I don't agree?  My company has to, by law, maintain bulletin boards full of posters, messages, statements, etc. that I don't necessarily agree with but are legally required to post on my property as communication to workers.  And these bulletin boards have to be made a bit larger every year.  I don't have to accept any federal money to be absolutely required, at the penalty of heavy fines, to post these communications.

I would be a bit more enthusiastic in my support for these law faculty if I didn't suspect that they have been the very people out in the forefront of trashing my first amendment rights as a business person.

Postscript: By the way, is this even a problem anyway?  At Harvard Business School, the largest recruiters eschewed campus altogether, and conducted all their interviews at offsite hotels.  I would think the military could pretty easily work around these law schools prohibitions. 

On several occasions, I have warned that government funded health care is becoming a Trojan horse for increasing government micro-management of your life.  The logic is that by paying for your health care, the government can argue it has a financial interest in your not eating fatty foods, not smoking, wearing a bike helmet, exercising, etc, decisions that would otherwise only affect the individual themself.*

For those who often accuse me of exaggerated paranoia when it comes to government intervention, check out this from the UK:

People who are grossly overweight, who smoke heavily
or drink excessively could be denied surgery or drugs following a
decision by a Government agency yesterday.  The National Institute for Health and Clinical Excellence (Nice) which
advises on the clinical and cost effectiveness of treatments for the
NHS, said that in some cases the "self-inflicted" nature of an illness
should be taken into account.

Sorry, but I told you so.  What's next?  Is an unwanted pregnancy "self-inflicted"?  How about an STD from unprotected sex?  The rulers of this process in England might argue that "Oh, we would never include those things" but technocrats in the US have seen parallel things happen as they have lost political control of their similar institutions in the US.

It gets me to wondering whether the Solomon Amendment may be the new template for government control of individual lives.  In both Universities and state governments, the Feds use the threat of withdrawal of federal funds to coerce actions (think 55 mile speed limit, title IX, military recruiting on campus) that the Constitution nominally does not see to give them authority over.  Now, there is the distinct possibility that federal funds to individuals (Social Security, Medicare, unemployment) could be used to increase federal authority and coercive micro-management at the individual level.

*Update: Yes, I do know that "themself" is probably not correct grammar.  I sometimes use they, them, themself as a grammatically frowned-upon but I think less awkward substitute for he/she, his/her, and his-or-herself when trying to be gender-neutral.  Sometimes I just use the traditional male pronoun, sometimes I use the female pronoun generically since women will complain about "he" used generically but men will not complain about "she", and sometimes I mix them up.  There is still some consensus building to do in coming up with gender neutral pronouns, though this person defends the singular "they".

Every once in a while I post something off the cuff and find retroactively that I have tapped into a rich source of blogging material.  Such is the case with my post a couple of days ago about technocrats on the left regretting loss of control of the statist institutions they created.  In that article I cited examples of the left freaking out over a conservative-controlled FDA halting over-the-counter approval of the Plan B morning after pill and the injection of certain conservative dogmas (e.g. intelligent design) into public schools.  The moral was that the left is lamenting the loss of control, when they should be reevaluating the construction of the regulatory state in the first place.

David Bernstein at Volokh brings us another example with the Solomon Amendment, the legislation that requires universities that accept public funds to allow military recruiters on campus.  Folks on the left hate this act, many because they oppose the military at all junctures while others more narrowly oppose recruiting as a protest against the Clinton-era "don't ask, don't tell" policy law brainchild.  Eskridge and Polsby debate the pros and cons at the ACS Blog.  I tend to be sympathetic to the private universities, who rightly don't feel like acceptance of federal money or research grants should negate their control of their institution.

But my point is not the merits of the Solomon Amendment, but to point out the irony, very parallel with the FDA and public schools examples previously:  The Solomon Amendment is built sturdily on the precedent of Federal Title IX legislation, legislation that is a part of the bedrock of leftish politics in America.  Title IX first established the principal that the Federal government could legally override the policy-making and decision-making at private universities if they accepted any federal cash.  It was the left that fought for and celebrated this principal.  The left ruthlessly defended the state's right to meddle in private universities in substantial ways, and passed legislation to shore Title IX up when the Supreme Court weakened state control (from the Bernstein post):

The Court's attempt to preserve some institutional autonomy for universities
from anti-discrimination laws caused uproar among liberal anti-discrimination
activists. They persuaded Congress to pass the "Civil Rights Restoration Act."
This law ensured that if a university receives any federal funds at all,
including tuition payments from students who receive federal aid, as in Grove
City's case, all educational programs at that university are subject to Title
IX.

The Solomon Amendment is modeled after the Civil Rights Restoration Act's
interpretation of Title IX.

In fact, in the linked articles, Solomon is being attacked by the left precisely because it does not allow universities the freedom to set their own anti-discrimination policy (in this case, banning recruiters judged discriminatory to gays), when the whole issue of Title IX was precisely to override a university's chosen anti-discrimination policy (or lack thereof).  So again we have the case of the left building an government mechanism to control private decision-making, and then crying foul when their political enemies take control of the machinery.

In my naive youth, I would have assumed that this contradiction would quickly be recognized.  However, the left (and the right too, but that is for another post) has been able for years to maintain the cognitive dissonance necessary to support the FDA's meddling in every single decision about what medical procedures and compounds a person can have access to while at the same time arguing that abortion is untouchable by government and that a woman should make decisions for her own body.  In this case, it will be interesting to see if the left is able to simultaneously decry state control of discrimination policies at private universities in Solomon while continuing to support state control of private university discrimination policies as essential in Title IX.

Correction: You learn something every day.  I called don't-ask-don't-tell a "policy, as I had assumed that it was merely an internal military policy.  Apparently it is a law.