The Solomon choice

IF THE FEDERAL government contributes hundreds of millions of dollars to colleges or universities, should it be allowed to dictate what goes on at those institutions?

The answer, according to two of the most important and successful civil rights laws in US history, has long been a resounding ''yes," when it comes to race and gender discrimination. Title 6 of the landmark Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin by institutions receiving federal funding, and Title 9 of the Education Amendments of 1972, which applies to sex discrimination, both reflect the fundamental principle that public funds should never be used to encourage discrimination-and that the government can withdraw its funding, often very large amounts of money, from institutions that discriminate.

But next month, the Supreme Court will hear arguments in a case that some fear could threaten the reach of these historic civil rights laws. The case, Rumsfeld v. FAIR, doesn't concern race or gender. In an ironic twist, it centers instead on a piece of legislation called the Solomon Amendment, passed in 1994, which says that the government can withhold funding from universities whose law schools refuse to allow military recruiting on their campuses because they consider the armed forces' ''don't ask, don't tell" policy on gays and lesbians to be discriminatory.

The plaintiff in the case-an organization called the Forum for Academic and Institutional Rights (FAIR), representing 38 law schools and law faculties-is supported by the American Association of University Professors, as well as Harvard, Yale, New York University, Cornell, and other universities, who have filed amicus briefs. FAIR is arguing that the Solomon Amendment allows the government to violate the law schools' First Amendment right to express opposition to ''don't ask, don't tell" by, in effect, making an offer the universities can't refuse: Give military recruiters equal access to law school students on campus, the government demands, or face a crippling loss of federal funding to the entire university.

''It may seem outlandish," explains FAIR's president, Boston College law professor Kent Greenfield, but if the Supreme Court upholds the Solomon Amendment, the government will be able to exert enormous pressure on universities based on the willingness of the schools ''to change their educational philosophy or their curriculum."

But if the Solomon Amendment amounts to government overreach, some are asking, what about Title 6 and Title 9? Surprisingly, the fear among some liberal lawyers and civil rights advocates is that, if the Supreme Court sides with the law schools, the legacy of those victories could be undermined.

''There is no guarantee," says Laurence Tribe, a professor at Harvard Law School and a leading constitutional scholar, ''that the Supreme Court would write an opinion with the degree of delicacy required to strike down the Solomon Amendment in a way that does not endanger the vigorous use of Title 6 and Title 9 to enforce antidiscrimination."

In other words, FAIR's battle against antigay discrimination runs up against what have been some of the strongest tools in fighting race and gender discrimination in the nation's academic institutions.

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American law schools' antidiscrimination policies date back to the early 1960s, and some law professors were among the strongest advocates for legislation like Title 6 and Title 9. NYU's law school was among the first to prohibit recruiting on campus by firms that discriminated against blacks; other law schools followed suit, in time adding discrimination against women and against gays and lesbians as further criteria. The impact of the rules, recalls Burt Neuborne, a law professor at NYU and former legal director for the American Civil Liberties Union, was ''to shame certain law firms into taking a second look at habitual discriminatory behavior" and to opening up their doors to women and minorities.

In the past decade, because of ''don't ask, don't tell," the antidiscrimination policies have been used chiefly against the military. But the law schools, as they point out, haven't prevented students from interviewing with the military if they chose to do so, allowing access through the university's ROTC offices or by invitation from student associations instead of through the law school. Often the difference between the military's and other employers' access was purely formal-interview appointments scheduled by university employees instead of law school employees, for example.

Nevertheless, after 9/11, with the Bush administration's blessing, the Department of Defense stepped up enforcement of the Solomon Amendment, and the law schools gave in to the government's demands. At the same time, though, they took the fight to court.

Initially, the penalty for noncompliance with Solomon was withdrawal only of federal funds going to the law schools-but law schools were willing to forfeit the (comparatively) small amount they get from the government. Subsequent amendments made the penalty vastly harsher: Today, if any ''subelement" of a university, such as the law school, refuses the military exact parity with other recruiters, the entire university could lose all its federal funding, without which most universities would, at the very least, lose essential research facilities and teaching hospitals.

To the law schools' claim that the Solomon Amendment violates their First Amendment rights-because it requires them to assist the military in discriminating against gay students, thus conveying a message they find abhorrent-the government responds, in its brief filed in July, that in a time of war, with recruiting shortfalls, the military needs unfettered access to students. If the universities don't want to accept federal funds because they find the conditions onerous, the government further argues, they are free to decline that funding.

''The Solomon Amendment," the government explained in October, ''merely proposes that, in exchange for supporting the education of an institution's students, the federal government should have an equal opportunity to recruit the very students whose education it has supported."

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NYU's Neuborne recalls warning about the possibility of something like the Solomon Amendment back in the early 1980s, at a time when civil rights advocates were pushing the Supreme Court to use the threat of wholesale funding cuts as a tool to enforce Title 9. ''We developed a position that said if any piece of the university takes federal money, the entire university is covered by the antidiscrimination norm," says Neuborne. ''I warned we wouldn't be happy with this test because it will mean the government gets to control whole universities."

In yet another irony, a similar concern was raised by Chief Justice John Roberts when he was a young lawyer in the Reagan administration. In 1982, Roberts wrote a memo supporting the position that in Title 9 gender-discrimination cases, discrimination in one part of the university should only trigger Title 9 penalties in that program, not in the entire institution. ''Under Title IX," Roberts wrote, ''federal investigators cannot rummage wily-nily [sic] through institutions, but can only go as far as the federal funds go."

The FAIR plaintiffs find themselves making a similar argument, although in the FAIR case, the roles are reversed. In Roberts's memo, the point was to broadly limit the power of the government to enforce antidiscrimination statutes. FAIR's argument is meant to keep a private institution from being forced to accommodate what it sees as the government's own discrimination. But the principle is the same: limiting the federal power to regulate what goes on in academic institutions, be it hiring and admissions practices, distribution of athletic resources, or accommodating military recruitment.

Of course, race and gender are constitutionally protected classes-there is no First Amendment right to discriminate on the basis of race or sex-and so Title 6 and Title 9 automatically receive a higher level of protection from the court than on-campus recruiters. Which could mean, as FAIR's Greenfield maintains, that there is no ''real possibility of negative consequences for Title 6 and Title 9."

Anti-Solomon lawyers like Yale law school professor Robert Burt, the plaintiff in a similar case challenging the Solomon Amendment in the district court of Connecticut, agree that there is a way to limit the government's funding power without destroying its ability to use spending restrictions to accomplish social goals like equality. The Supreme Court, Burt explains, needs only to insist that a ''compelling need" for the funding penalty is demonstrated, and that there be ''a close and narrowly constructed fit" between the penalty and the accomplishment of the government's goal, in this case unfettered military recruiting.

Kathleen Sullivan, a law professor at Stanford and former dean of its law school, claims that Solomon fails this requirement on a couple of levels. For one thing, the military's insistence on equal access-and the ensuing ''political theater" in the form of campus protests and picket lines-actually works against the goal of successful recruitment, discouraging law students from interviewing with the military at all. ''The military was just at Stanford," she said recently, ''and no one showed up to interview because of the protests."

Aside from these more pragmatic concerns, however, Sullivan argues that the central problem with the Solomon Amendment is that ''the government is putting a viewpoint-discriminatory condition on funding," violating the First Amendment.

It's true that very few universities could claim that the requirements of Title 6 and Title 9-the requirements not to discriminate on the basis of gender or race-violate their right to free speech. But, as Harvard's Tribe points out, there might be a few.

''Some universities like Bob Jones or some analog of Bob Jones on the gender side might well be able to generate a First Amendment argument," Tribe says. ''And I would hate to see a world in which that kind of First Amendment claim became a general blueprint for avoiding the neutral across-the-board application of antidiscrimination rules."

Kristin Eliasberg is a New York-based journalist who writes about legal issues.