Solomon Amendment Case:

I’m pleased with the result of the Solomon Amendment case, allowing private universities to discriminate against military recruites. As those of you who are familiar with You Can’t Say That! would guess, I think that the First Amendment right of expressive association protects private universities’ ability to defy federal antidiscrimination laws when those laws interfere with the universities’ ability to define the message they project to the world. However, the Third Circuit’s opinion overlooks some mighty important issues, leaving the case susceptible to reversal.

First, the plaintiffs were not the law schools that objected to the Solomon Amendment, but individual law professors and membership organizations not affiliated with the law schools. It’s as if the Boy Scouts of America v. Dale case had not been brought alumni associations, and organizations of Christian scouts not affiliated with the BSA. [Whoops, my mistake, I was confusing this case with another Solomon Amendment case. One of the organizations involved in this case is actually a consortium of law schools.] (This also seems like a good time to remind readers of the inconsistency of those law professors who strongly opposed giving the BSA an expressive association right to exclude gay scoutmasters, but became born-again believers in freedom of association when the Solomon Amendment case arose.)

Second, neither the majority nor the dissent bothers to mention the Supreme Court’s decision in the Grove City College case. This case suggests that universities have a very limited, at best, First Amendment right to defy federal law when the law in question is enforced via the spending power rather than directly through regulatory power. The case is especially relevant because it was a Title IX case, and the Solomon Amendment was modeled after Title IX (for a discussion, click here). I happen to think that Grove City was wrongly decided on this issue, and that it’s distinguishable, for reasons I explain in a slightly different context here. But the Third Circuit didn’t bother to distinguish it.