More “Sauce For The Goose Is … Sauce For The Goose”

Last month I discussed (here and here) what can only be called the hypocrisy at the core of the lawsuit by liberal law professors against the Solomon Amendment, which allows the U.S. government to cut off funds for universities that refuse to allow military recruiters on campus.

The lawlibs claim the amendment violates academic freedom. They may well be right about that, but I would be more inclined to sympathy with their position if some of their number would acknowledge liberal error in failing to support little Grove City College when it made the same argument, to no avail, in the 1980s. For that matter, the lawlib argument today also has much in common with the argument Bob Jones University, which lost its tax exemption, to liberal joy and acclaim, because the Supremes held that not only its First Amendment right to academic freedom but also its First Amendment right to the free expression of its religion was trumped by the IRS’s interpretation of the claims of “public policy.” (I discussed Bob Jones here and here.)

All of which proves, or at least suggests, that it’s very hard for liberals to make principled arguments about the right to be free from discrimination based on race, sexual preference, etc., these days since they have spent the better part of the last generation undermining that principle.

The argument that “Liberal Academics Get What They Ask For” is made much more eloquently in a new article by that name by David Bernstein. He concludes:

The irony, of course, is that the same liberal “civil rights” activists who now oppose the Solomon Amendment, adopted in 1996, had supported previous efforts to ensure that the federal government could use its financial power to force private universities to obey draconian antidiscrimination rules. In other words, the troubling consequences of government regulation of universities’ internal affairs have come full circle.

I’m not sure that hypocrisy is ironical, but I am sure that you should read the whole thing.

UPDATE – For a characteristically provocative discussion of an interesting academic freedom controversy that is brewing in Michigan, see Erin O’Connor’s post on the objection of some Michigan legislators, and others, to a UM English (!) course entitled “How to Be Gay: Male Homosexuality and Initiation.” Be prepared, however; Erin makes clear that this matter is not as simple as you may think.

Say What? (6)

  1. stu December 9, 2003 at 12:31 pm | | Reply

    John-This time you are way off base. The Soloman Amendment prohibits those taking federal money from excluding certain points of view from campus. Doesn’t seem all that draconian and it is hardly a violation of any speech rights. To the contrary, the S.A. expands the breadth of speech rights on campus.

    The Grove City and Bob Jones cases involved the federal government compelling a NARROWING of speech rights on campus.

    Otherwise, keep up the very good work you do.


  2. Steven Den Beste December 9, 2003 at 2:04 pm | | Reply

    “Academic Freedom” isn’t listed anywhere I’ve seen in the Constitution or its Amendments, nor is it implied particularly by any of them.

    First amendment guarantees to free expression are clearly phrased as restrictions on government action. And in general all the explicit designations of our civil rights are declared as “freedom from”, not “freedom to”. They’re declared as limits on government power, but include no entitlement for citizens.

    I am free to speak, but I am not entitled to an audience, nor to demand that someone provide me a soapbox on which to stand. If I want a soapbox, I have to find one for myself. And if someone offers to give me a soapbox but with certain conditions, that doesn’t violate my rights. If I consider the conditions unacceptable, my only choice is to refuse the soapbox.

    It perhaps is arguable that “academic freedom” is a manifestation of First Amendment rights to free expression. But that doesn’t imply that academics are entitled to government funding, and if they choose to accept government funding I see no reason why the government can’t demand quid pro quo for its money.

  3. John Rosenberg December 9, 2003 at 3:43 pm | | Reply

    First, let me welcome Steven Den Beste (and his comment). I, and I suspect more than a few DISCRIMINATIONS readers, are big and regular fans of his USS Clueless.. He is certainly right that there is no explicit recognition of academic freedom in the First Amendment, or elsewhere in the Constitution, but for better or worse the courts have long recognized that such a right exists, though as with many rights (think “freedom of association”) its exact nature, content, and extent are fuzzy.

    My point, which I offer in response to our friend Stuart as well, was certainly not that universities have a right to receive government funds, or that the government has no right to insist that its recruiters may follow its funds onto campuses that receive the funds. My point was limited to agreeing with David Bernstein that those liberal law professors who are suing the Defense Dept. with an argument that is based on a rather far-reaching version of academic freedom are hypocritical to the extent that they do not concede at least some merit (I happen to think the merit was considerable) to the arguments that were made on behalf of Grove City College and Bob Jones University.

    Turning to Stuart’s argument that the Solomon Amendment is quite different from those two cases:

    First, the Amendment does not bar federal funds from colleges “excluding certain points of view from campus” but from those excluding military recruiters.

    Second, I don’t believe it is quite accurate to say that either Grove City or Bob Jones “involved the federal government compelling a NARROWING of speech rights on campus.” Grove City determined that the college was subject to various civil rights restrictions that followed federal money, even though the college had tried pretty hard to refuse federal money and, in fact, received it only indirectly throught the choices of students with federal funds (from such things as the G.I. Bill) to enroll there. The college’s speech rights weren’t impaired, only its freedom to be free of government required paperwork and, of course, its freedom to discriminate, which was not relevant since it was not discriminating and had no desire to. Similarly, Bob Jones lost no speech rights. What it lost was its tax exempt status, because the IRS determined that its policy against interracial dating (which it claimed was biblically ordained) violated “public policy.”

    But again, my point here is not that either Grove City or Bob Jones in fact had an open and shut academic freedom argument that every reasonable person must accept, just as I don’t claim that it is equally clear that the academic freedom argument of the lawlibs is patently bogus. All I argue here is the hypocrisy of the lawlibs who shout an academic freedom argument when it suits them and who remain silent, or affirmatively and loudly disagree, when the same argument is made to protect behavior they don’t like.

    But, I agree, that’s not much, since it’s no big deal these days to find liberal hypocrisy when it comes to civil rights arguments.

  4. Stu December 9, 2003 at 8:02 pm | | Reply

    I agree with your hypocrisy point, but these days that is pretty much a dog bites man story.

    You made some nice lawyerly debating points for your position on the Soloman Amendment. But the far more important point is that the S.A. does in fact require virtually all colleges and universities to permit a point of view to be represented and expressed on campus that has been categorically and affirmatively excluded from many campuses for at least 30 years.

    Thus, the legislation portends both a de jure and a de facto expansion of the boundaries of expression and discourse (and conduct).

    Your argument can prevail only if the substance of such expression, etc., is not of a type protected under the 1st Amendment. And what are some of the substantive issues? Opposition to or support of the US’s entrance into and prosecution of a war, providing information to men and women who may be asked to make war and set and carry out military policy are two that come to mind off the top of my head. These seem to be pretty important issues in the current Democratic primaries, as well.

    Silencing those in the military who might be expected to have opinions on these and like issues, opinions not likely to be widely available on campus, by excluding them from campuses is a violation of the 1st Amendment for state-supported schools.

    As for private schools, the lesson is not so esoteric: He who pays the piper calls the tune and we need not concern ourselves with the whining of those who are unwilling to perform their side of the bargain.

    As for the anti-discrimination laws, etc., the govt has steadfastly sought to enforce these last few decades. They are a gross infringement upon “the speech we hate” and epitomize the exact totalitarian impulse the founders recognized as inherent in all persons. Their solution was the 1st Amendment–the purpose of which was to prohibit abridgements of speech by govt itself. If antidiscrimination laws, etc., are not a restriction of free speech, then there is no such thing as a restriction (or free speech for that matter.)


  5. John Rosenberg December 9, 2003 at 10:59 pm | | Reply

    Stuart, I don’t know that we disagree very much here, and I have no desire to magnify what disagreement there may be into a debate, but for the record (someone is keeping a record, isn’t someone?) I think you’re making the Solomon Amendment more significant, and virtuous, than it is.

    You repeat again that it “does in fact require virtually all colleges and universities to permit a point of view to be represented and expressed on campus that has been categorically and affirmatively excluded from many campuses for at least 30 years,” and you conclude again that it “portends both a de jure and a de facto expansion of the boundaries of expression and discourse (and conduct).”

    I’m certainly no expert on this issue, and I have not researched it in any depth, but I’ve seen no evidence that the Solomon Amendment does anything more than provide for barring funds to colleges that ban ROTC programs and/or exclude military recruiters. See a copy of the legislation here. If this is not the most recent version, or you have some evidence that S.A. says or does anything about protecting the expression of unpopular views on campus, let me know. Maybe all you mean is that barring funds to institutions that ban ROTC would encourage ROTC-related views, and if so then I wholeheartedly agree with you.

    Of course, banning ROTC is not quite the same as prohibiting the expression of pro-ROTC views, just as decding not to have an Astrology Dept. doesn’t necessarily mean suppressing astrological opinions. If there is such a thing as academic freedom, then surely it extends to colleges having a right to determine what courses of study are offered, but that doesn’t mean they necessarily have a right to the gov’t funds they would lose if they choose not to offer ROTC.

  6. Stu December 11, 2003 at 12:45 pm | | Reply

    I was merely using a broad brush to describe what I perceived to be the fundamental difference between the S.A. and federal antidiscrimination laws. In short, while Bernstein is a very smart guy with well-considered and expressed views on law and social policy, his analogy here is very sloppy and inapt.

    The S.A. was not intended to expand free speech rights, but it has had that effect. The antidiscrimination laws may not have been intended to restrict free speech rights (I am not at all certain but restriction of speech was in fact an intended effect), but they have had that effect.

    With the latest SOTUS abomination yesterday, perhaps I am getting a bit cranky on these matters, but absolutely clear “big picture” recognition of the consequences of semi-illiterate drafting of legislation and case law is essential (as it always has been) to preservation of our freedom.

    Now, as a practical matter, the 1st Amendment apparently means in pertinent part “Congress shall make no law abridging freedom of speech, except to prevent corruption or the appearance of corruption, to make more secure the political advantages of incumbency or for any other damn reason it can think of.”

Say What?