“When you take the King’s shilling, you are the King’s man” was the rule for British recruiters two hundred years ago. They would try to get lowlives and down-and-outs in bars to accept a shilling; it was regarded as a salary advance, so if you did, you were legally in the army. The Solomon Amendment just argued before the Supreme Court says that a university whose law school refuses access to military recruiters is in violation of the conditions under which it accepted the “King’s shilling”–that is, all its federal funds. (The military is thought to violate most law schools’ rules excluding recruiters for firms and agencies that discriminate, in particular on grounds of sexual orientation.)
The government’s threat to withhold all these funds, including research grants, is quite the 2×4 with which to command attention, hence the case. A law school can probably do fine without federal money but the science departments cannot. A lot of interesting issues are raised, and interests activated, by the current litigation, but one that especially bothers me its exemplification of the conflict between the national power to tax and spend, and the tenth amendment reserving powers not enumerated in the Constitution to the states.
It’s a long reach for the federal government to regulate law schools except (for example) to forbid them to discriminate, or to say whether drivers in any given state are permitted to turn right on a red light (though the commerce clause’s tentacles have been allowed to grow remarkably over the years). But it’s certainly appropriate for the national government to levy taxes of various sorts, and to give grants to states with various conditions and purposes. As a result, an enormous edifice of de facto federal regulation that violates any reasonable understanding of the reserved powers clause has been constructed, by saying “we wouldn’t dream of telling you what your traffic laws should be, or how to run a law school. Feel free to allow no right turns, or to keep our recruiters out of your school, or even to require a man on foot carrying a red flag to precede any motor vehicle on your roads. If you do those things, we won’t send anyone to jail, we just won’t give you the zillions of dollars your citizens paid in gasoline tax, or income tax that funds the NSF and NIH.” Because the amounts of money are so enormous, it’s pretty much impossible for states and non-profits to treat these conditional grants as anything but regulations with as much force as law. One casualty of this centralization of policy is the “fifty laboratories” opportunity for one or another state to try interesting stuff without betting the whole national system on a risky innovation.
I think the military’s practice regarding homosexuals is both stupid and evil. I also think schools should have no problem allowing recruiters of whom they don’t approve to have easy access to their students, and should advance their own agendas in the classroom, by research, and by their own good practice. And I think the creeping erosion of the tenth amendment by this tax-and-not-spend trick is bad practice even when it allows this or that good end to be advanced by employing it, and even if the holdings that have allowed it are impeccable legally. I have no idea, as a result, which side of the current case I’m rooting for. In fact, I don’t know whether I’m groping for political (Steve?) or legal (Jon?) insight…perhaps one of them will straighten me out so I can have a solid opinion; I really dislike not knowing what I think about an important issue like this.