Right-Wing Students Strike Out in Effort to Compel Enforcement of Solomon Amendment

U.S. District Judge John D. Bates (D.D.C.) has dismissed a lawsuit brought by a right-wing student group, seeking to compel the Defense Department to disqualify the University of California at Santa Cruz (UCSC) from receiving federal financial assistance due to the University's alleged failure to comply with the Solomon Amendment, a provision of federal law that requires higher education institutions to provide "equal access" to military recruiters in order to preserve their eligibility for such funding.  Young America's Foundation v. Gates, 2008 Westlaw 2376274 (June 12, 2008).

According to the plaintiffs, a national organization that claims a small number of student members on the Santa Cruz campus, demonstrations and other activities by faculty and students at UCSC have generated so much hostility against military recruiters that their participation in career fairs at the University has been sharply curtailed at the instance of the recruiters, and the University has done nothing to restrain the demonstrators or take steps to afford the military recruiters a protected venue for meeting with interested students. 

The plaintiffs claim to have written to the Defense Department several times about this problem, but the Department has apparently been disinclined to follow up by threatening the school with being blacklisted for federal funding.  So the student group, represented by the right-wing Mountain States Legal Foundation, filed suit against the Secretary of Defense, seeking to compel action.

Judge Bates granted the motion to dismiss on two grounds. 

First, he found that the Defense Department has essentially non-reviewable discretion to decide how and when to enforce the Solomon Amendment.  Judge Bates wrote, "The Supreme Court has firmly stated that 'an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion," quoting Heckler v. Chaney, 470 U.S. 821 (1985).  The exception to this rule is when legislation or regulations provide guidelines for the agency making a decision whether to enforce a particular legal rule, thus providing a court with some "law" to apply in determining whether the agency is violating a statutory requirement. 

In this case, Judge Bates found there are no such guidelines, finding that the wording of the Solomon Amendment and its implementing regulations do not provide any particular rule or standard for the Secretary to follow in determining whether a school is in compliance with the Amendment.  Thus, the judge found that every decision involved in implementation is confided solely to the discretion of the Secretary, not subject to judicial review.

In addition, Judge Bates found that the plaintiffs did not have standing to bring this action in the first place.  YAF, the organization, had to show that at least one of its members at UCSC would have individual standing to bring suit in order to have associational standing to be a plaintiff.  (The case was brought by YAF, the organization, not by a group of its student members at UCSC.)   In this case, that involved allegations that particular YAF members at UCSC who had hoped to meet with military recruiters at the university-sponsored job fairs had been thwarted in doing so, as the protest activities led the recruiters to pack their bags and leave.  YAF did not name any specific students in its complaint as having had that experience, merely asserting it as to some anonymous individuals.  The defendant asserted that there must be a named individual who had suffered injury-in-fact in order for there to be standing to bring the lawsuit.  Bates would not go quite that far, but found reason to reject YAF's standing argument. 

"Ultimately, YAF may have shown - although just barely - the minimum required to demonstrate that one of its members has a cognizable injury-in-fact for associational standing purposes," conceded the judge, "particularly at the liberal pleading stage.  It is not, however, necessary for this Court to decide that question.  Even assuming that one of YAF's members does have a sufficient injury-in-fact, YAF has not shown: (1) that such injury was caused by the Secretary's actions; or (2) that the injury will be redressed by the relief it has requested in this lawsuit." 

Put otherwise, nothing that the Secretary of Defense has done or failed to do was a cause of the anonymous YAF member or members not being able to meet with military recruiters at the job fairs, and there is no proof that ordering the Secretary to threaten UCSC with loss of federal funding will change matters. 

YAF tried to argue based on the Yale Law School case, to no avail.  In that case, Yale Law School had adopted a written policy of excluding recruiters from organizations that discriminate based on sexual orientation, and under those rules military recruiters did not get "equal access" on campus to Yale law students.  Enforcement of the Solomon Amendment -- or at least threatened enforcement -- resulted in Yale abandoning this particular rule and affording equal access to military recruiters.  But, Judge Bates pointed out, UCSC does not have such a formal non-discrimination rule.  The school, as such, does not exclude military recruiters; they were invited to participate in the job fair, and it was their own decision to leave when demonstrations by students and faculty members led them to conclude that it was not productive for them to remain or to attend future job fairs.  Thus, there was no indication that threats by the Defense Department against UCSC would necessarily result in the cessation of student/faculty protest against military recruiters.  "Simply put," the judge concluded, "YAF's theories of causation and redressability are too attenuated to carry YAF's burden to establish standing.  Accordingly, the Court will grant the Secretary's motion to dismiss."

What goes unspoken here is an important point made by Chief Justice John Roberts in his decision for the Supreme Court in the FAIR v. Rumsfeld case, in which the Court upheld the constitutionality of the Solomon Amendment against a First Amendment attack.  Roberts insisted that the Solomon Amendment was constitutional because the Amendment does not prevent schools for voicing their disapproval of the military's anti-gay personnel policies.   If, in this case, YAF could get a court to order the Defense Department to put UCSC on its financial-assistance blacklist because student/faculty protests against military recruiters were effective, that would seem to undermine the very free speech principles that Roberts invoked in finding the Amendment constitutional.  Indeed, Roberts had asserted that schools, and of course their faculty members and students, retain the full First Amendment right to protest the presence of military recruiters and to protest the military's personnel policies.  It is up to the Defense Department to decide whether any particular school's activities place it out of compliance with Solomon.

I suspect that had a federal judge actually ordered the Defense Department to suspend federal financial assistance to a school because individual faculty members and students had mounted a protest so successful that military recruiters decided to leave, there would be a significant First Amendment issue raised about censorship of political speech.  So YAF's strategy in this case of enlisting the federal courts in an effort to obtained a preferred, protected position for military recruiters came to no avail.