Flawed legal logic

THE U.S. MILITARY IS LOOKING for a few good lawyers. But many of the nation’s law schools want to keep Pentagon recruiters off campus, citing policies against employers that discriminate on the basis of sexual orientation. Incensed by this, Congress passed in 1996 a law known as the Solomon Amendment, which threatens to cut all federal funding to any university that does not provide the military the same access provided to other prospective employers. In response, a group of law schools filed a suit claiming the law violates their 1st Amendment rights.

Their suit was heard by the Supreme Court on Tuesday, and the proceedings underscored the two toughest questions in this case. First, how could the nation’s top law schools, overflowing with brilliant legal scholars, have agreed to make such an absurd argument? And second, how in the world did they prevail in the Court of Appeals?

We do not approve of the Pentagon’s “don’t ask, don’t tell” policy that bars openly gay men and women from serving in the military, so we are sympathetic to the schools’ impulse to protest the policy. But their constitutional argument is embarrassingly weak.

It’s also dangerous. The federal government’s constitutional right to attach conditions to its spending is well established, and for decades it has been a catalyst for social progress. Many organizations have ended discriminatory practices rather than face the loss of federal funds. Now these law schools argue that accepting the attached strings to their federal funds violates their rights to free speech and association, forcing them to abandon their values to endorse the military’s hiring policies.

That’s nonsense. If the justices were to buy it, plenty of organizations could go back to discriminating against women and minorities while still taking taxpayer money.

Fortunately, the justices seemed rather impatient with the law schools’ argument, and the smart money is predicting a unanimous opinion in this case. Noting that the law schools would still have plenty of ways to express their displeasure with the military’s hiring policies, Chief Justice John G. Roberts Jr. said the law “doesn’t insist that you do anything.... It says that if you want our money, you have to let our recruiters on campus.”

Beyond the legal arguments, it’s worth remembering that the military is not merely another recruiter. Law schools should step back from their self-indulgent campus politics and realize that it is in the national interest to have smart, well-rounded law school graduates join the military, and that in our democracy there are plenty of other ways to try to change ill-advised laws.

If universities insist on barring military recruiters, of course, they are free to do so. But they should also be prepared to do without federal funds.