Commentary

Liberal Academics Get What They Ask For

Liberals are up in arms over the Solomon Amendment because it prohibits universities that receive federal funding from discriminating against military recruiters who must follow the anti-gay “Don’t Ask, Don’t Tell” policy. Liberals don’t like that policy, don’t want it, and argue that the Solomon Amendment interferes with their right to set university rules that are more open to homosexuals. Indeed, a group of Harvard Law School professors has just announced its intention to sue the government to overturn the Solomon Amendment.

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.

First, a little history. The origins of federal interference with university policy lie in Title VI of the 1964 Civil Rights Act, which bans racial discrimination at federally funded universities, and the Title IX Amendment of 1972, which extended the ban to sex discrimination. Grove City College, a Christian liberal arts school in Pennsylvania, tried to preserve its independence by refusing all federal funding. Grove City even declined to participate in federal student aid programs that required the college’s direct involvement.

But those efforts to retain independence were not enough to stave off federal bureaucrats motivated by extremist antidiscrimination ideology. In 1977, the Office for Civil Rights of the old Department of Health, Education, and Welfare (HEW) claimed that while Grove City declined direct federal funding, it received indirect funding by accepting tuition payments subsidized by a federal program, even though students applied for this program without any input from or participation by the school. Therefore, according to HEW, Grove City was bound by Title IX.

Grove City’s then-president, Charles MacKenzie, refused to sign the assurance of compliance. But he did affirm that the school had “no argument with the spirit or intent of Title IX’s support of nondiscrimination.” The college had accepted women since its founding in 1876 and had never been accused of sex discrimination. But MacKenzie believed that if Grove City agreed to comply with Title IX, the result would be increased costs to the college, greater expenses for its students, threats to the Christian nature of the college, mandated affirmative action preferences based on race and sex, and a general loss of independence. HEW at least partially validated his suspicions when it later informed Grove City that colleges subject to Title IX must maintain “detailed records of all student and employee applications, enrollments, academic records, personnel files, suspensions, hirings, firings, promotions, denial of promotions, etc. — all broken down by race, age, sex, and ethnic origin — and submit them upon demand to federal authorities.”

The college eventually filed a federal lawsuit against HEW, claiming that it was not a federally supported institution subject to Title IX and that, in any event, it had a First Amendment academic freedom right to refuse to comply with the government’s intrusive demands in the absence of any allegation that the college had practiced discrimination. However, the Supreme Court disagreed. It held that Title IX applied to Grove City because its students received financial aid from the federal government. The Court also ruled that the First Amendment didn’t apply because Grove City could evade Title IX by forbidding its students to receive federal financial aid.

The Court tried to limit the damage its holding inflicted on the institutional independence of colleges by ruling that only Grove City’s financial aid office was subject to Title IX because only that part of the university was a recipient of federal aid. The rest of the institution, however, could maintain its autonomy from the federal government.

The Court’s attempt to preserve some institutional autonomy for universities from antidiscrimination laws caused uproar among liberal antidiscrimination activists. They persuaded Congress to pass the “Civil Rights Restoration Act.” This law ensured that if a university receives any federal funds at all, including tuition payments from students who receive federal aid, as in Grove City’s case, all educational programs at that university are subject to Title IX.

The Solomon Amendment is modeled after the Civil Rights Restoration Act’s interpretation of Title IX. If Harvard Law School refuses to comply with the amendment, Harvard University stands to lose all of its $420 million in annual federal funding. Suddenly, liberal professors at Harvard and elsewhere have decided that draconian antidiscrimination laws should not be invoked at the expense of university autonomy.

Well, it’s a little late for that. With the Solomon Amendment, liberal activists are learning the old lesson that whatever power you give the government to do things for you carries with it the equivalent power to do things to you.

David E. Bernstein is professor of law at George Mason University and author of the new book, “You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws” (Cato Institute, 2003).