Gregory Cooper: Solomon's coercion

In his op-ed last deeming "un-American" the University's support for those challenging the Solomon Amendment, which would withhold millions in federal funds from institutions that bar military recruiters from campus, Joseph Sesin muddies the waters of this important debate with much emotional appeal, but little reasoned argument. He also has quite successfully turned the Constitution on its head.

Despite Mr. Sesin's characterizations, the debate has little to do with "a fair agreement" and everything to do with the proper limits of the government's coercive power. In supporting as amicus curiae the coalition of institutions that have joined together as the Forum for Academic and Institutional Rights, the University is hardly "peeling through law books," "[camouflaging] its plight to make headlines behind a phony ideological stand," as Mr. Sesin suggests. No concerted effort is necessary "to find some way out of adhering to a simple bargain."

The basic premise of the argument is largely true that Congress has great latitude when it comes to attaching conditions to federal spending programs. This latitude, however, does not permit Congress to let funding hinge on conditions that infringe the constitutional rights of the recipient.

The issue, therefore, is not as simple as a quid-pro-quo bargain. Instead, the key question is whether using federal funds to coerce an educational institution to provide access to a discriminatory employer violates the institution's First Amendment rights. As the brief filed in Burbank v. Rumsfeld, one of the many cases pending in this matter, argues, "the government [here] has not merely required the Law School to refrain from excluding military recruiters. ... It has additionally compelled the Law School to assist and participate in discriminatory recruitment, a direct contradiction of the explicit anti-discrimination policy."

In the case currently before the Supreme Court, the Court of Appeals emphasized that "educational institutions are highly expressive organizations, as their philosophy and values are directly inculcated in their students." As an expressive association, an institution cannot be forced to express, even implicitly, viewpoints that go against its core beliefs. Such implicit expression is directly at issue here, as requiring institutions to open their doors to military recruiters effectively compels these institutions to be a conduit through which the military can communicate its discriminatory message.

While conditioning the disbursement of federal funds is not inappropriate per se, any requirements must be related to the purpose of the spending program in question. The Solomon Amendment, however, attempts to force private institutions to express a viewpoint that runs afoul of the basic values they wish to express -- hardly a purpose related to any legitimate federal spending program. Congress could never have accomplished such an end directly, so it has instead opted to do an end-run around the Bill of Rights.

Although there is an important governmental interest at stake here, this interest cannot outweigh the imposition on an institution's constitutional rights, particularly since the military retains ample means to recruit without slighting the First Amendment.

Thus, the University's opposition to the enforcement of the Solomon Amendment is not merely a matter of "[hopping] on the high-profile bandwagon." To suggest that this issue may be resolved by "[kicking] those recruiters off campus today, no questions asked, and [taking] the financial hit," ignores the fact that Congress simply has no right to condition federal spending on a recipient's abrogation of its own rights.

The Law School's policy -- representative of policies at its peer institutions -- is simple: "The University of Pennsylvania Law School is committed to a policy against discrimination in employment based on race, color, sex, sexual or affectional orientation, religion, age, national origin or disability. The Law School's career planning and placement services are available only to employers whose standards and practices conform to this policy."

The University's support of the FAIR litigation does nothing more (and nothing less) than support the vitality of this policy, and ensure its equal application to all potential employers. Contrary to Mr. Sesin, I can't imagine anything more American than this.

Gregory Cooper is a second-year law student.

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