The King’s Shilling

“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.

Author: Michael O'Hare

Professor of Public Policy at the Goldman School of Public Policy, University of California, Berkeley, Michael O'Hare was raised in New York City and trained at Harvard as an architect and structural engineer. Diverted from an honest career designing buildings by the offer of a job in which he could think about anything he wanted to and spend his time with very smart and curious young people, he fell among economists and such like, and continues to benefit from their generosity with on-the-job social science training. He has followed the process and principles of design into "nonphysical environments" such as production processes in organizations, regulation, and information management and published a variety of research in environmental policy, government policy towards the arts, and management, with special interests in energy, facility siting, information and perceptions in public choice and work environments, and policy design. His current research is focused on transportation biofuels and their effects on global land use, food security, and international trade; regulatory policy in the face of scientific uncertainty; and, after a three-decade hiatus, on NIMBY conflicts afflicting high speed rail right-of-way and nuclear waste disposal sites. He is also a regular writer on pedagogy, especially teaching in professional education, and co-edited the "Curriculum and Case Notes" section of the Journal of Policy Analysis and Management. Between faculty appointments at the MIT Department of Urban Studies and Planning and the John F. Kennedy School of Government at Harvard, he was director of policy analysis at the Massachusetts Executive Office of Environmental Affairs. He has had visiting appointments at Università Bocconi in Milan and the National University of Singapore and teaches regularly in the Goldman School's executive (mid-career) programs. At GSPP, O'Hare has taught a studio course in Program and Policy Design, Arts and Cultural Policy, Public Management, the pedagogy course for graduate student instructors, Quantitative Methods, Environmental Policy, and the introduction to public policy for its undergraduate minor, which he supervises. Generally, he considers himself the school's resident expert in any subject in which there is no such thing as real expertise (a recent project concerned the governance and design of California county fairs), but is secure in the distinction of being the only faculty member with a metal lathe in his basement and a 4×5 Ebony view camera. At the moment, he would rather be making something with his hands than writing this blurb.