The Right Loses a Culture War Battle

The Solomon Amendment is a prime example of the "culture wars."  It derives from two phenomena: dislike for the military on U.S. campuses stemming from the anti-war demonstrations of the Vietnam War era (mid-1960s through early 1970s) and the rise of a campus gay rights movement protesting discrimination against gay people by the military (mid-1970s to the present).  A Republican Congressman from western New York, Gerald Solomon, responded to these trends by championing amendments to Defense Appropriations Bills that would deprive colleges and universities of federal funding -- at first just Defense Department funding, later a broad array of federal financial assistance -- if they did not grant some sort of parity in recruiting access between military recruiters and other potential employers of students.  Access to on-campus placement offices and job fairs was the main goal of this, and an important focus was on law school placement offices, where representatives of the Judge Advocates General of the various military services sought to recruit.

Thus was launched an on-going culture war between the law school community and the Defense Department, with bans, threats, boycotts, and political lobbying, culminating in a lawsuit by a consortium of law schools under the acronym FAIR, contending that the Solomon Amendment was an unconstitutional abridgment of the political rights of law schools and their faculties under the 1st Amendment.  This did not impress the Supreme Court, which rejected the argument in one of the first culture war decisions of the new Roberts Court, in an opinion by the Chief Justice in Rumsfeld v. FAIR, 547 U.S. 47 (2006).

It's one thing for the U.S. Supreme Court to uphold the policy, another thing for the Defense Department to enforce it.  In this newest culture wars case, Young America's Foundation v. Gates, No. 08-5366 (D.C. Circuit, July 24, 2009), the reluctance of the Bush Administration to invoke the Solomon Amendment against a university where student and faculty protest had impaired military recruitment prompted an attempt at "self-help" by the right wing. 

Young America's Foundation, a right-wing organization that seeks, among other things, to assure military recruiter access to campuses, sued the Defense Department for its failure to invoke the Solomon Amendment against the University of California at Santa Cruz.  The University's policy, in compliance with Solomon, was to provide access to military recruiters. The policy was unpopular with campus activists and some faculty, who demonstrated and protested against military recruiters.  Military recruiters, finding their efforts thus impeded, withdrew from the campus and, in the face of effective protests, the university even cancelled a job fair entirely.  YAF claimed in this lawsuit that the University's failure to discipline the protesters or to take any effective steps to prevent disruption of military recruitment, prevented young rightwingers who are members of YAF's campus chapter from interviewing on-campus with the military.  Premising its standing to sue on this disadvantage suffered by its members, YAF sought to have the court order the Defense Department to invoke the Solomon Amendment and suspend federal financial assistance to the university.

The district court rejected the lawsuit on two grounds.  First, lack of standing.  While conceding that YAF's members suffered a deprivation, the district court found that YAF had not alleged facts showing that this injury was caused by the Secretary of Defense's failure to invoke the Solomon Amendment against the school, or that a court order compelling the Secretary to do so would necessarily redress the injury.  Second, non-justiciability.  The district judge found that the decision whether to invoke the Solomon Amendment in any particular circumstances was confided to the discretion of the Secretary of Defense and was essentially not subject to judicial review.

The majority of the D.C. Circuit panel decided to refrain from opining on the second ground, having concluded that the case could be decided solely on the issue of standing, and then solely on the second standing ground cited by the district court.   

Circuit Judge Douglas H. Ginsburg wrote, "YAF's task was to allege facts sufficient to show it is likely the Secretary's withholding or threatening to withhold federal funds would enable YAF's members to meet with military recruiters at on-campus job fairs.  This it has not done. . .  As the Supreme Court has pointed out, the Solomon Amendment leaves the University 'a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds.'  Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 58 (2006).  Based solely upon its allegation that UCSC received $80 million in federal funds in 2005 and receives 'tens of millions' every year, YAF argues it is not speculative that the University would choose and 'there is "little doubt" that UCSC's behavior would change' if the Secretary invoked the Solomon Amendment against it. . .  Merely showing UCSC's behavior would change in some undefined way is not enough, however; YAF must allege facts from which we can reasonably infer it is likely that the loss or threatened loss of the money would motivate the University to act to ensure YAF's members could meet with military recruiters at on-campus job fairs unimpeded."

The problem here, of course, is that the university is committed to the First Amendment rights of its students and faculty, as well as to complying with the government's requirements for receiving federal funds.  On the one hand, it allowed the military to participate in the job fair.  On the other, it allowed students and faculty to protest peacefully.  That the protest was so successful that the University decided to close down the on-campus job fair at one time did not result in unequal treatment for the military, wrote Judge Ginsburg.  "Canceling a job fair presumably equalized students' access to military and non-military recruiters at job fairs, at least for a time (thought it is not clear that made YAF's members any better off)," wrote Ginsburg, perhaps a bit tongue-in-cheek. 

YAF had also conceded in its allegations to the district court that the University had followed the "standard campus judicial process ... to investgate whether students violated the campus code of conduct and to take appropriate disciplinary action."  There was no suggestion that the University could do more than that, without violating the First Amendment rights of students.   Since YAF did not suggest what else the University should do, wrote Ginsburg, "it is speculative whether an order compelling the Secretary to withhold funds from the University would redress YAF's injury."

In a brief concurring opinion, Senior Circuit Judge A. Raymond Randolph, while agreeing that the district court's dismissal of the case should be upheld, would have premised it instead "solely on the ground that the Administrative Procedure Act precludes judicial review of the Secretary's decision whether to enforce the Solomon Amendment."

Thus, in its attempted culture war maneuver of getting a federal district court to order the Defense Department to enforce the Solomon Amendment against a university where effective student protest had shut down military recruitment on-campus, YAF struck out on two fronts.  Two of the panel members determined that it lacked standing to pursue its claim, and one of the panel members concluded that the court did not have the authority to review the Defense Department's discretionary decision.