Herzog on the Solomon Amendment case

Over at Left2Right, Don Herzog has these thoughts on the Solomon Amendment litigation.  Here's the heart of his argument that the Amendment (which requires law schools that receive federal funding to treat military recruiters like other recruiters, notwithstanding the schools' objections to the "Don't Ask, Don't Tell" policy):

I think Congress and DoD were within their constitutional rights every step of the way — until late 2001.  (So I'm not buying the bill of goods FAIR sold the third circuit, though I grant that the issues surrounding the spending clause and the doctrine of unconstitutional conditions are tricky.)  When the feds said to the law schools, "sorry, no binders in libraries, no interviewing offices across the street, we have to get the identical treatment other employers do," they were insisting on more than their functional interests in being able to interview law students.  They were insisting that the law schools no longer symbolically affirm their nondiscrimination policies.  Put differently, the feds were saying to the law schools, "you can't say that any more."  I think that's the only plausible interpretation of the 2001 move.  But we don't have to speculate.  Again, DoD told us why they changed the policy:  anything less than identical treatment "sends the message that employment in the Armed Forces is less honorable or desirable than employment with other organizations."  But may the government tell people, under pain of coercion, "don't say what you want to say; say what we want you to say"?  That's a classic loser under first amendment law.

Herzog is right to remind us that, in the First Amendment context, "targeting" and "burdening" by governments are often treated differently.  That said, the facts in this case do not require the conclusion that, in fact, when lawmakers enacted the Amendment, "they were insisting on more than their functional interests in being able to interview law students.  They were insisting that the law schools no longer symbolically affirm their nondiscrimination policies."  This seems a real stretch to me.  The effect of the Amendment on (what the law schools characterize as) the law schools' antidiscrimination stance is minimal; no one should think that, say, Yale Law School -- even if it is required to comply with the Amendment is going to have any difficulty promulgating its message.  (Now, Herzog's point is that Congress should not have tried  to silence the law schools' anti-discrimination message; my point here is that, because it is so clear that the Amendment does not, in fact, silence that message, it is not likely that Congress enacted the Amendment in order to silence the message). 

In any event, this seems to me to be the kind of question -- i.e., "is this law about silencing the schools' antidiscrimination messages, or about ensuring equal treatment for recruiters" -- that courts are not going to find any easier to resolve than the "whose interests weigh more" questions that Herzog himself (wisely) thinks should be avoided.  In any event, read the whole thing . . .

Rick

UPDATE:  I had an e-mail conversation with Professor Herzog, and he emphasizes that his objection is not to the Solomon Amendment itself, but to the government's actions after late 2001.  It is in these later actions that Herzog sees pretextual targeting of the schools' anti-discrimination messages.