The
Golden Gate University Federalist Society Presents:
"The Constitutionality of the Solomon Amendment"
A DEBATE on the coming US Supreme Court Case:
F.A.I.R. et al. v. Rumsfeld
(oral arguments scheduled for late November)
Featuring
Peter KeaneProfessor of Law and former Dean of GGU School of Law
(Professor Keane will be presenting FAIR's position)
vs.
John YooProfessor of Law - Boalt Hall
(Professor Yoo will be presenting the Government's position)
Thursday, September 22nd 2005
5-6:15 p.m. Room 2202.
536 Mission St. San Francisco, CA
Admission is free. Light refreshments will be served. Press is invited to
attend. Any questions, e-mail
ggufed@hotmail.comRUSH TRANSCRIPT (NOT VERIFIED)
Matt Gaidos [President of Federalist society chapter; introduces speakers]:
John Yoo was former director of international law project
Clerked for Judge Silberman and Justice Thomas
[New book on] Powers of war and peace
[...]
Peter Keane is dean emeritus
[...]
Frederick White [Dean of law school]:
Thank you for coming
Keane:
Little history in 80s, law school started to have policies on recruitment, that they could not discriminate, [on the basis of] race, sex, ethnicity, and added to that became sex orientation
In 1990s, a response to the Department of Defense whole policy that someone who is a gay person cannot serve in the military, the thought, quite legitimately, that employers recruiting, an employer [that discriminates on basis of sexual orientation shall be treated as an employer that discriminates on the basis of race or gender]
That became standard for law schools nationwide
When I was dean, the Department of Defense would send letter saying we want to recruit, and I would say sure, sign this line [against don’t ask, Don’t tell] otherwise discrimination is okay
[Members of Congress] Pambo (ph) in CA, and Solomon in NY, said we’ll make people in ivory tower pay a high price to be starry eyed idealists, that federal funding would not be forthcoming, that includes a lot of things
Benign policy until 9/11, then threats became real, cut off all funding, by the fall of 2003, every law school in country said we can’t operate without federal funding, we’ll cave in to policy of recruiters
At the same time, FAIR, a group of law professors filed suit in NJ, at time of filing, Golden Gate University was only dean [who joined in this]
That gave suit standing
Injunction denied
Third Circuit, which found the Solomon Amendment unconstitutional
Essentially two distinct reasons why it’s unconstitutional, [first reason] unconstitutional conditions doctrine
Government can’t put a condition on you and force you to do something unconstitutional
It can’t force you to say things, express things, government can’t make you take a particular point of view, so it can’t penalize you for not advocating it
Within that, basic first amendment rule that makes the Solomon Amendment totally unconstitutional
First, the rule regarding expressive association
If you have an association that expresses viewpoints, then government can’t interfere with [those in any way]
Principal case, Boy Scouts v. Dale
Boy Scouts say we have a certain message, that homosexuality is wrong, people who engage in it are wrong, Boys Scouts has a certain message, to have Dale as assistant scoutmaster, violates our rights as an expressive association, interferes with our message in a way the government is prevented from doing
Just as the Solomon Amendment wants to get out message that homosexuality is bad, law schools want to get out message that employment discrimination is bad
Just as the Boy Scouts says having Dale as spokesperson gives mixed message, for recruiters to come to law schools from an employment entity that discriminates against gays interferes with expressive association message that discrimination is wrong, that fairness and equal justice are philosophies they want to send out
The only way to survive that is under the standard of strict scrutiny, compelling government interest
The government interest is to get talented lawyers for military
Another aspect is that it must be narrowly tailored so government can’t achieve that object in any other way other than to impact free speech
So look at alternatives that the Department of Defense has to attracting talented lawyers, [they have a budget of] hundreds, millions of dollars
Loan forgiveness, teases, can go on radio and television and use media that most employers can’t use
Clearly many ways for the Department of Defense to achieve its objectives of attracting talented lawyers to military rather than interfere with expressive association
It appears that what the Department of Defense does is counterproductive in attracting talented lawyers because of ill will generated, that they’re threatening law schools, we’ll put you out of business unless you agree with discriminating
Third circuit said that was dead in the water
Second argument, prohibition against compelled speech
Government can’t force you to say what you don’t want to say
[There are state] License plates [that say] live free or die, people disagreed with that
That’s not my philosophy, I don’t want to espouse that, don’t want it on my license plate, the Supreme Court said that doesn’t go on my license plate
Government can do compelled speech in three ways
[First] Making you say the things, like with license plate or other cases, like a school that says one must salute flag or take pledge
That’s a violation of the First Amendment
The second aspect is in regard to making you accommodate some kind of message or speech that you don’t want to accommodate or agree with
Hurley, St. Patrick’s Day Parade
That was a private institution, they did not want to have gay contingent, because this is a group that provides a message, by us accommodating them, it’s compelled speech
The Department of Defense says you have to accommodate them, give them a room, treat the same way that you treat every employer
Third aspect (and any one makes it unconstitutional) is if you are forced to subsidize compelled speech, what the Department of Defense demands is that we as law schools post their materials, use our staff, do all sorts of things in terms of subsidizing this message that we disagree with
Once again all three of these are dealt with in terms of strict scrutiny, it can only survive if this is the only way that the Department of Defense can obtain compelling state interest to get talented lawyers; we already dealt with that with expressive association, so for second aspect of compelled speech, the Solomon Amendment is flatly unconstitutional
The Third Circuit ruled that it was, back in November, and that now is before the US Supreme Court
If the Supreme Court sticks to tried and true, then the Solomon Amendment will be ultimately sent to the dustbin of history where it belongs
John Yoo:
It’s great to leave the People’s Republic of Berkeley to come to a more conservative place
[Thank you for coming]
He looks like he ought to be president
I wish I played my part to dress as Cal prof, [but I didn’t have my tie dye]
I’ll talk about law, and also policy, whether this makes sense to disagree with the military [in] this way
One thing Keane did not talk about is that Third Circuit didn’t talk about the Spending Clause
Under the Spending Clause Congress regularly uses its power over the purse, to attach conditions that you can’t do things under
For those of you who have taken a structural constitution class
South Dakota v. Dole, Congress wanted to raise the drinking age over 21, another thing law students care about, federal government didn’t have power to do, so they said anyone who wants federal highway funds has to raise it
The Court said Congress couldn’t achieve it directly, but it can do it through spending, so long as clear, some relation, don’t force state to something unconstitutional [summary of Dole factors]
That’s exactly what the federal government has done here, attached condition to funding, if you want funds, you have to take conditions, it won’t violate constitutional rights, it says don’t discriminate against government, it’s not like forcing school to put out a pamphlet, a letter
This is in context of on-campus recruiting, I know that because it’s the only time students wear ties and jackets
The school has opened itself up as an open forum, the one type of people who can’t recruit are armed forces
Spending conditions say that if you want federal funds, you can’t discriminate
This occurs in areas of highest government interest
This is not EPA, this is US military in the middle of a war
Terrorism, Iraq, Afghanistan, wars authorized by statute
It’s compelling government interest to recruit when we’re at war
Government could draft everyone, I remember signing up, and I’m still in the viable age range to be called up
If government can draft all of you, how can government not do much lesser intrusive thing, to recruit on college campuses to voluntarily sign up
This is backwards to me that this would be the result
Let me address unconstitutional conditions, the dean did a good job of explaining case law and application
All I say it’s not as cut and dry; unconstitutional conditions case law is very muddled and strange, not consistent, never applied here before
It makes the Court to say recruitment and recruitment fair are speech, like parade (Hurley), Irish American parade in Boston, as if you need one, parade organizers didn’t want gays and lesbians to carry signs
No one could carry signs [representing the views of subgroups, and the Court said the state can’t force parade organizers to have [a different message]
Is a parade with viewpoint the same thing as a job fair?
Can it be said that every school [supports] every [company, its cases, methods]
They’re trying to help you, they’re not trying to endorse every law firm’s message
The other case he relied on, Dale, gay Boy Scouts, the Boy Scouts didn’t want to allow gays to be scoutmasters, a state law...court said you can’t force inclusion of people into membership, that’s different from on-campus job fair too
Military isn’t forcing military to be admitted (though you can’t prohibit against veterans and [I]wonder if that would survive this theory) or to force admission of military [personnel as] faculty
This is about recruitment; is there confusion, do people think that [military recruiters] are members of the faculty, students?
Law is boring, we all want to talk about policy anyway [transition to policy discussion]
Think about implications if law schools win
Then someone can get federal funds, [and] ignore conditions on them that interfere with a belief or message that the school, the recipient believe arise from conduct
A lot of civil rights laws are written in that way
Title IX, forbids schools from getting federal funds to discriminate against gender, law is used to require spending the same amount of spending, how is that constitutional?
Suppose the school says we’re forced to believe in gender equality; under this argument, they can have all of this and continue to discriminate against women
Same with race [analogous statute], disabled [persons], suppose a school wants to discriminate against all of those groups, why can’t they make the same argument?
I’m not here to defend military’s policy [of Don’t Ask, Don’t Tell], on deference, purporting military effectiveness
But suppose if you oppose it, is this the best way to get what you want? Isn’t it better to work in the military, convince it to change its mind, the notions that military culture that led it to implement this rule, does it make sense to prevent recruitment of people who might have a different point of view?
The better thing is to work in military, try to change it from within than exclude from universities and law schools
I do think that, I don’t deny law schools are taking a stand on principle, and advance what they think is correct as matter of policy and philosophy
Think about cost
Harms students who want jobs, students who want to be patriotic, hurts armed forces from getting full range of recruits, is it good for country, again, we are in a war, several wars, and many may disagree but now we’re in them, shouldn’t we let them have access to the best and brightest so that we can win them?
Thanks
Keane:
Yoo’s response was excellent, a couple of things should be corrected
Congress does have spending power under Constitution, and it can enforce conditions with regard to spending bills, he talked about Dole, highway
Congress is saying if you want federal funds, raise the drinking age to 21
Where is the First Amendment issue in that? That anyone is being compelled to say anything or express anything that contradicts ones conscience or philosophy? It’s not there
Spending issues, yes, conditions, yes, but not conditions that violate the first amendment
The other thing, there is no message in regard to law schools saying the Department of Defense recruiters come to our campus, when we say we rank an employer that discriminates against huge part of population with same favoritism that we rank, we’re saying they’re equal...
There is no message that we’re saying there’s this employer that’s coming but you’re not good enough, won’t get that job, there’s no message in that? In terms of harm and hurt, in addition to injustice of that, the terrible message carried out, like that to generations of African Americans, which like don’t ask don’t tell was held unconstitutional? You’re not good enough to have these jobs
With regard to military, Goldwater, not the most fuzzy headed liberal, father of modern conservatism, asked about gays in military, said what’s important is not that they be straight but that they can shoot straight
No matter how we come done, we have a military now that’s had a hell of a time meeting recruiting goals, that it is really harming itself by going ahead and cutting out a large number of very talented people who would like to be there
We’re not saying that being a lawyer in the military is a lousy job, it’s a good, terrific, interesting job, and everyone should be allowed to have this job
That’s what the problem is
Many students nationwide are frozen out of good job, like black people were frozen out of American life
That’s a message that certainly again, let’s assume we love war and want to win this, fostering democracy around the world, how do we do that with a message that we’re democratic, but not to everybody, and a bunch of people, that we pick them out on some basis or characteristic
So we can go to Iraq, Sunni Shiites, Kurds have to be included by fiat, imagine you’re an Iraqi, and want to see if this I the model, fairness, justice, impartiality, not infliction of pain, they look at our society and see a large # of people being harmed by the basis of some immutable characteristic they have, born with, like black people, it’s a characteristic, they have a right to have it, but on that basis we’re marginalizing, we do our country, military, war no good in attempting to win it under rubric of democracy with this hypocritical policy, forcing univ which want to give out message of conscience and fairness
[White:
Pass questions on index cards down to the front
Please make sure all questions are legible]
Yoo:
Questions for me don’t have to be legible, just don’t throw anything
First to be awfully doctrinal, Dole says government can achieve things it can’t achieve unless it doesn’t force [violation of the] First Amendment
If Golden Gate University gets funds, [it doesn’t violate the Constitution by allowing recruiting]
Is recruiting speech Rosenberger, [case involving university funding of student activities] they said they wouldn’t fund religious groups, the Supreme Court said no you have to, you create a public forum, decided to open up coffers to participate on equal basis, can’t exclude them because of viewpoints
Law schools want to discriminate against armed forces because they disagree with viewpoint
Third thing, a lot of times government choice on funding
Rust v. Sullivan, when government funds medical procedures, can restrict which doctors advise; whenever government, having limited funds, has to choose, otherwise you have to fund something
Last point on armed forces and segregation, in terms of history, the armed forces desegregated on their own long before American society, not because of law schools, under Truman
But suppose in course of desegregation Congress said any university receiving federal funds can’t discriminate against them because of desegregation policy
What if southern states after Brown said we don’t want them recruiting because they’re desegregated
Under the theory here, schools could take government money and promote discrimination
Last point, whether this military policy is wise, I don’t’ think law schools can know
I have great belief in ability to reason together, but it’s factual; I’m sure military is aware of cost, alienation, but on other hand, has to decide about combat effectiveness, I’m not saying I can be judge of whether this policy outweighs others on fighting ability, but this is what government told courts when don’t ask don’t tell was first [challenged]
I don’t know if that’s true, that’s factual, courts reviewed and upheld it
Personally I would not rather have policy in effect if I knew all [its] effects, but I don’t know all [the] effects, military is the expert on how to fight and win wars, not law school professors and administrators
White:
We have class here at 6:30 so we want to finish at 6:15
I just shuffled the cards, no agenda
[Q:] How does O’Brien standard apply to Solomon
Keane:
It doesn’t, the Third Circuit said so, that would be intermediate scrutiny, that test would be in regard to a particular type of first amendment question on intimate association, it comes from cases like where the Rotary Club and JC’s [junior colleges] attempt to keep women out on basis of intimate association of membership, but intimate association doctrine of O’Brien is totally separate and apart and has no basis for unconstitutional conditions standards of either expressive association or compelled speech
The Third Circuit spent good part explaining why it doesn’t apply
Yoo:
I didn’t pay anyone to submit that question, it points to difficulty in argument, but also central ambiguity about what is challenged
O’Brien, on whether burning draft cards is speech or conduct, Court says government can prohibit that, subject to intermediate scrutiny, because it’s conduct and speech together; upheld government prohibition
Same problem here, fundamental q, are job fairs conduct or are they speech, if they’re a mixture, then O’Brien applies, law school says job fairs are conduct, but it seems that many aspects are less speech than burning draft cards, they’re not symbols or political opposition, it’s recruiters saying come work for us
White:
Q: how can we go to military to change policy when we’re not allowed in
Yoo:
It’s Don’t Ask, Don’t Tell, you can serve but you can’t openly identify yourself as gay
It’s not just gays, I know a lot of heterosexuals who don’t agree with it either...
Keane:
Difficulty you’re telling group of people to live complete artificial life, denying identity, that’s an enormous price to say you can get into military but you have to completely abandon your soul in terms of who you are, that’s fine to pay that price, gay people shouldn’t’ have to pay that price
Yoo:
I thought of something, military discriminates against women, they’re not allowed to serve in front line combat units, that’s discrimination on basis of gender, is it the case that law schools should prohibit military from recruiting on that ground too, does it raise same arguments that Keane made, that military is wrong for that distinction?
Keane:
Difference is that with regard to cases, government can make distinctions based on biological differences on men and women, but nothing on First Amendment question that is involved, return to basic fundamental fact that it doesn’t have to do with other situations that first amendment, if you get into first amendment violations under either any of doctrines, it’s a different situation, strict scrutiny
Gender discrimination can be done on basis of biological, differences quite validly, and pass intermediate scrutiny, not First Amendment question
White:
Q: Up until late 70s exclusion from serving from combat positions, would Keane have objected to that if [he was] dean back then:
Keane:
I sure would have, I had that opportunity, any discrimination of group within our society, race, ethnicity, sexual orientation, would have objected
White:
Here it might be plant by John Yoo, please ask John Yoo to discuss content of new book
Yoo:
You can ask another question
Keane:
It’s such an opportunity
White:
Q: is push to prohibit military recruitment misdirected, isn’t Congress [the] source [of this law], and doesn’t banning contribute to divide between segments of society of law schools and military, wouldn’t you undermine don’t ask through engagement?
Yoo:
I could go on for hours on book, I will be on radio Monday, 10 to 11 am, KQED [?] I’m sure it’s at bookstores around you, but buy it on Amazon so it makes the numbers go up, it’s about commander in chief powers, okay I sold it I’m sure you’re racing out to buy it
It’s a policy question, engagement would be a much better policy, when I was in government, I worked with people in military, it’s a somewhat closed culture
Most effective way to change is more contact with rest of society, way to do that is not to exclude ability to bring people in, assuming most people disagree with don’t ask, then you want more people in military with that view
I’m confident this policy will change eventually because people will go into the military that don’t have this view, that’s more effective than courts
What if law schools drove desegregation in military rather than Truman? Having military do it itself was far more effective
Keane:
You can use segregation experience quite well for engagement, think about 60s, public accommodations, buses, hotels, it was a massive effort at the time seen as illegal in many ways by Martin Luther King, people who looked at an injustice and said there is a couple of ways to do that, sit back, lobby, hope that state legislatures will change, or we could make some sort of much more affirmative action on our part that this is wrong, unjust, we do it by measures of risk, I think history will look back as it does, efforts against apartheid in South Africa, segregation, or present injustice of discrimination on basis of sexual orientation, history will look back at that, say those who resisted, said no, would not accommodate themselves or engage in some easy way to make change, they’re the ones who really did make the change
Yoo:
This is interesting question about change in social norms, willingness of society to allow military to discriminate against gays, but ask what price it comes at
Dean Keane is quite right about private action to promote desegregation, but Congress passed a series of laws, Civil Rights Act, Voting Rights in 1965, used a lot of tools that government uses now, ask now, I guess, people who believe in social change going in certain direction don’t trust the legislature, so effect to narrow powers of Congress, ask yourselves why are we doing that, removing tools that Congress used in past, get Congress to fight it out, change the Solomon Amendment, pressure president, but does it make sense that because of this policy permanently remove from the policy toolbox, Congress’ ability to change
Keane:
But we were given the tools of change, and it’s the First Amendment, and when Congress goes ahead and violates the First Amendment, tools of change are prohibitions that are there in first amendment, to go ahead and not trample on First Amendment by using its tool kit to not trump the Bill of Rights
White:
Having lived in the civil rights movement, I’m tempted to put on hat of [... but I’m the] moderator, this is for either one, isn’t it true that a recruiter that said it’s anti-gay would be removed, and this is not a government agency but private company, isn’t it unfair to connect federal funding to law school policy?
Yoo:
If Golden Gate University believed in this policy, they can refuse to take federal funds and discriminate for or against whomever they like for recruitment decisions
One way to think about difference for government versus private employer, government says if you take our money, give access to our recruiters, you [are] to allow them
Because of federal funding, Golden Gate University can’t discriminate against law firms recruiting on a lot of different grounds, suppose it wanted to discriminate on basis of gender, they can’t do that, they lose federal funding because of the Civil Rights Act
But under argument here, Golden Gate can refuse to [follow federal law that forbids discrimination the basis of gender] it follows logically, if you eliminate this power, you eliminate the power of Congress to do things you agree or disagree with
Keane:
To say there is easy answer and law firms and universities can do away with federal funding, that’s every student’s loan, putting every school out of business
It’s like saying to children at time of desegregation, you don’t like being in all black school, you want to be in integrated school, don’t go to school, it has as much sense to say to universities, you can just commit suicide, blow yourselves up, let all of your students do without an education, turn them out into cold
White:
Is this an unconstitutional condition because the funds are unrelated to raising an army?
Keane:
Yoo said the Third Circuit didn’t mention spending power, they did, they talked about Dole, the Solomon Amendment is not a spending bill, one case was on Congress appropriating funds for healthcare, saying it would not include abortions, that very different, what Congress is doing is appropriating a certain amount of money and this is what we’ll spend it on, this kind of healthcare...and that’s it
That’s very different from situation of passing a measure that’s not a spending bill, it says no monies from federal treasury to any university unless it endorses, propagates, subsidizes message of discrimination and unfairness
Yoo:
First in response to it not being spending bill, I don’t think under Dole that a spending restriction has to be in the actual appropriations bill, a lot of civil rights act are the same way, it doesn’t say for these two years you can’t use these funds; rather, it’s a permanent law, anyone in future can’t discriminate on basis of race or gender, can be in cross-cutting bills,
Second one is harder, subunit [doctrine], can Congress put [this restriction] on any part of a unit, so long as a subunit receives funds, or does it only apply to school, is it unconstitutional for Congress to make the whole school lose money
So far, the court has never bought that distinction, there was a case, Savre (ph) the government said if any state or local government receives $10,000, they are subject to condition that they can’t use that for bribery, be liable for federal prosecution, that’s a much bigger subunit problem, by taking $10K, Florida subjects itself to anti-corruption laws, [this law was] upheld
If that’s fine, then the conduct of law schools triggers spending conditions on the entire university would be fine
Keane:
After 9/11 when Rumsfeld started threatening everyone on no government funds unless they allow law school recruiters, the threats that they’d close down whole university were actually in violation of the Department of Defense regulations
Regulations that time pursuant to the Solomon Amendment says only penalize subunit, they changed it since then, the Department of Defense and Rumsfeld were so dogmatic and emphatic about punishing, that the first promulgation of these threats was one that was actually illegal
White:
Is it unconstitutional to have segregated units consisting solely of gays?
Keane:
I don’t think so
Separate but equal...
Yoo:
So the implication that some [units] are just straight, it has to be I guess
Under case law, Don’t Ask Don’t Tell policy I imagine it would be, but it would depend on facts that military would have o show, under case law sexual orientation under these cases is governed by intermediate scrutiny, government has to show why policy is justified
Government can’t just say armed forces can do this [the government can’t just assert this] they have to show affidavits, the reason why military discriminates results in objective increase in goals of armed forces, combat effectiveness, that was [phrase] used, I guess it’s possible
White:
Follow up question, how does that square with Truman
Yoo:
I’m just talking about review in court, the military could have produced evidence that desegregating would produce problems in combat effectiveness, but Truman said that’s not true, performance of units in World War 2, the World War 2 experience showed that segregation did not work, that it was not good
I have trouble with law schools as institutions making these judgments, we don’t know enough, economists [?] the commander in chief has [more knowledge and ability to hire staff who will study these facts]
They think this produces military effectiveness, courts should defer to that, they should [defer to political process]
Keane:
We don’t have to defer to law schools, we can [look]at history, prior to Truman’s executive order where he said do it, don’t be segregated anymore, feeling in many parts of country and military were racist, destroy bond of military unit, be terrible for our fighting abilities, all sorts of other problems with discipline and morale, same thing said about gays
Great thing about military, is that once you have a superior officer saying to military, you don’t like it, tough, do it, they do it, military carries out orders, accommodate themselves to orders of superiors, if that was done, wish Clinton did it when he had a chance, we’d sit here thinking what was all the fuss about letting gay people in military, see them performing heroically, well, filling a need that at this point of history is definitely there
White:
Question to [...] Keane, is any avenue as successful as on campus recruiting
Keane:
For compelled speech, burden on university to show this is the most effective way to do it, government was so damned arrogant, it didn’t show with stats was better kind of recruiting and it was their burden so they failed strict scrutiny, if looking at resources of government, it said to all of you, part of your minds is how to pay off loans, if they say loan forgiveness, rack up as many loans as you want, and it’s wiped out, you should think about that
Yoo:
The argument of difference between being part of law school run system with all the choices of whom you’re interviewing with, for armed forces to reach around that to try to get you to proactively...I have stats here, according to the JAG Association, over 50% of new Navy JAG first met with Navy personnel during OCI, half of Marines were through OCI during 2nd and 3rd years
So if law schools were successful in prohibiting the recruitment of on campus by armed forces, would that reduce the number and quality of people, it seems that such high levels of contact meet in on campus interviews it would have a big impact on military ability to recruit
Keane:
Yoo is [wrong?] government had no data, I hear 50% are gotten through OCI, but narrowly tailored said you could not possibly move to some other method that doesn’t impinge upon free speech, it’s absurd that government can’t move to some other method except by discriminating against gay people, force law schools to carry that message or get talented lawyers, that’s absurd
White:
I’ll exercise prerogative, for last words
Yoo:
I don’t have any last words, cede my minute back to you
White:
Law school is place where divergent ideas get discussed that’s why you’re in law school, discussing interesting and very controversial or important ideas in very eloquent ways, thank them...
END
