Legal Watch: The Wisdom of Solomon
By Ann Springer
The defining image of teaching is the "sage on the stage"—the professor in front of a rapt class. Yet some of the most interesting new legal findings have to do with a different kind of teaching, the kind that goes beyond the classroom. As professors have long known, students also learn by example from observing how a faculty and an administration structure the institution and govern themselves, and from experiencing how they decide who is admitted to study and who is hired to teach.
The U.S. Supreme Court addressed these aspects of teaching, learning, and academic freedom in its June 2003 decisions in the University of Michigan affirmative action cases. In determining how much authority should be given to educators in setting criteria for admission and determining how the student body should be shaped, Justice Sandra Day O'Connor, the "swing" vote, explicitly recognized the need for deference to educators in determining the best educational environment. She specifically noted that a faculty committee crafted the admissions policy upheld by the Court, that it became official policy upon unanimous adoption by the entire law school faculty, and that it focused on evaluating applicants' "potential to contribute to the learning of those around them." She recognized that such decisions are "complex educational judgments," within the purview of educators.
Recent cases involving challenges to the Solomon Amendment, a federal statute that punishes universities with a loss of federal money if they do not treat military recruiters "in a manner that is at least equal in quality and scope" to that provided other employers, reinforce Justice O'Connor's observations in a different context. The Solomon Amendment litigation arises from widespread law school policies that prohibit recruiters from participating in school-sponsored recruitment programs unless they agree not to discriminate on the basis of sexual orientation. Because the military does discriminate, law schools have barred military recruiters from such recruitment programs. The Solomon Amendment presented law schools with the impossible choice of either changing their policies to allow discrimination or losing federal funding critical to their entire institutions. Faced with these options, a number of law schools—faculties and administrations—decided to bring suit to stop the enforcement of the Solomon Amendment.
As AAUP friend-of-the-court briefs in these cases make clear, antidiscrimination policies at the law schools are part of a considered pedagogical approach to teach by example, and the heavy-handed enforcement of the Solomon Amendment violates concepts of First Amendment academic freedom and shared governance by forcing law school administrations and faculty to abandon mutually agreed upon pedagogical strategies for teaching ethics, justice, and civil rights.
The courts that have heard these cases agree with the AAUP. One federal appellate court, in a case brought by a coalition of law schools and faculties called the Forum for Academic and Institutional Rights, ruled that forcing law schools to allow access to their recruiting system by employers that violate their policies is coerced speech violative of the First Amendment. The court concluded that the Solomon Amendment violates the First Amendment by "impeding the law schools' rights of expressive association and by compelling them to assist in the expressive act of recruiting." It also recognized the importance of academic freedom, noting that "the Supreme Court has recognized that universities and law schools 'occupy a special niche in our constitutional tradition . . . [and] has acknowledged the importance of autonomous decision making by the academy.'" (The U.S. Department of Defense is seeking review of this case by the Supreme Court.)
In a similar case brought by the Yale University faculty, the federal district court in Connecticut reached much the same conclusion. That court, noting that the "condition imposed by the Solomon Amendment [was] in [no] way related . . . to the purposes for which the [threatened] federal funds [had] been given to Yale," concluded that the Solomon Amendment interfered with the faculty members' First Amendment right to "us[e] their freedom to associate, or disassociate, [as a means of] inculcat[ing] their values in their students and . . . propagat[ing] publicly their beliefs regarding discrimination."
Both the Michigan affirmative action and Solomon Amendment cases support the AAUP's statement On the Relationship of Faculty Governance to Academic Freedom. As that statement makes clear, "sound governance practice and the exercise of academic freedom are closely connected, arguably inextricably linked," which is one reason why "the faculty should have primary authority over decisions about such matters [as] . . . the maintenance of a suitable environment for learning."
Ann Springer is AAUP associate counsel.
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