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.