Law Schools Fought the Law, and the Law Won

The University of Wisconsin law students have voted overwhelmingly against the Solomon Amendment, which bans all colleges receiving federal funds from enforcing antidiscrimination rules against military recruiters. Law professor Donald Downs argues that the students should be criticizing “Don’t Ask, Don’t Tell,” not the Solomon Amendment. Actually, there are good reasons to oppose the Solomon Amendment. It threatens academic freedom by imposing federal constraints on what should be university decisions about their recruiting policies. A university cannot refuse federal funds because that would infringe upon the academic freedom of professors who need such funding to do their research. Worse, the Solomon Amendment (and FAIR v. Rumsfeld decision) is a massive expansion of federal power over private individuals and corporations. If you sell any product or service (such as research, or education) to the federal government or receive any subsidy, according to FAIR v. Rumsfeld, the government can now order you to be their propaganda agent and use your property for the government’s purposes. Conservatives, seething in their hatred of universities, didn’t seem to notice or care about this attack on the sanctity of private property.

However, FAIR v. Rumsfeld does allow the institution to engage in criticism of the military policy. So why not engage in some counterspeech by passing a “Truth in Recruiting Policy”? It could be a neutral policy like this: “Any recruiter that engages in discrimination prohibited by the University of Wisconsin, but where the University of Wisconsin is obligated by law to permit such recruiting, must warn students about the nature of such discrimination on all posters and recruiting material distributed. All people recruiting for institutions engaging in prohibited discrimination must wear buttons with the warning while recruiting. The warning should be of a readable size and be of the following form: ‘WARNING: This recruiter discriminates against [type of discrimination] people. The University of Wisconsin firmly opposes such discrimination.’” This “warning” approach solves all of the problems: it doesn’t prohibit recruiting, it doesn’t violate the Solomon Amendment, it expresses the institution’s opposition to the military policy, it warns students of the discrimination, and it creates publicity about the issue.