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Monday, April 18, 2005

Walpin on the Solomon Amendment

We heard today from Gerald Walpin on the Constitutionality of the Solomon Amendment. I guess I was a little critical of the speaker in my questions because I was called a "communist" after the talk.

My issue, and the root of my questions, was Mr. Walpin's contentions regarding Universities' academic freedom. He continued to suggest that it's not a First Amendment violation to mandate that the universities allow the recruiters. While I agree that universities should allow the recruiters, and that by not allowing them they are impinging academic freedom, the universities should be able to make that choice, should not be forced to allow the recruiters. I also think that private religious schools should not be forced to allow Planned Parenthood to recruit on campus.

But I don't know why he talked about this topic so much. The schools are not being forced to allow the recruiters. If they don't want the recruiters, don't take the money. The only issue would arise if this were to be a "false choice"--if the university could not operate without the money, then they don't have the option of not taking the money, and this is not a valid conditional exercise of the spending clause. Otherwise, schools are waiving their first amendment rights for funding--clearly permissible.

But, a friend suggests, isn't it also a false choice if the cost/benefit makes the decision prohibitive, even if the university would continue to exist? All this means is that Congress isn't getting its money's worth, or that Congress really wants the universities to comply. The universities are getting a lot of money just to let the recruiters on campus. Congress could push to get more for their money or to just pay less, but that would move the cost/benefit analysis closer to the middle, jeopardizing universities' decisions to comply.

The federal government is buying for itself future JAG attorneys, not regulating the speech of the universities. That Congress is paying a lot for these attorneys does not make the scheme unconstitutional.

Note the irony as well: Those who have pushed for high federal taxes and oodles of government spending on all of these programs are now up in arms because the government isn't spending that money the way they want it to. Hmm. I hate to say "we told you so," but we did. (hat tip to Lord Coke for this idea).


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