The King Solomon Judical Test

The Biblical story of King Solomon is a familiar one. Two women both claim the same child and Solomon, in his wisdom, must decide which woman’s claim is more credible. He decided that the child be physicallysplit in two and divided between the women. One woman accepts the terms. The other renounces her claim because she would rather suffer the acute pain of having her son raised by someone else than killed. Solomon immediately knew who the true mother was. It was the woman who put her child first.

The story illustrates an important point. The importance one places on something of value is, in part, measured by how much one is willing to forego for that value. Hence. it is more than a little ironic that the late New York Republican Representative Gerald Solomon helped pass an amendment in 1996 that requires that law schools give equal accommodation to military recruiters. Some law schools object to the Congressional directed “Don’t Ask, Don’t Tell” policy that prevents openly gay people from serving in the US military. The Solomon Amendment punishes the refusal to allow military recruiters the same access to student as other employers with a cut off of federal funds.

Schools have sued, but backed down. The rhetorical support of the gay rights agenda does not extend to declining federal funds as a matter of principle. Solomon’s Amendment helps us calibrate the value that these schools actually put on their self-righteous rhetoric.

Law schools have argued that the law suppresses their First Amendment right to express an opinion contrary to military policy. A law suit initiated by Yale Law School has made its way to the US Supreme Court. During recent oral arguments, the Court did not appear particularly sympathetic to Yale’s position. If the position of the law school holds, then anyone can claim exemption from a law because compliance would conflict with their right to express disagreement with the law.

The justices sliced through Joshua Rosenkranz who was one of the lawyers arguing in favor of the laws schools First Amendment right to ignore the law. When pressed by Justice Stephen Breyer, Rosenkranaz was forced to concede that such an interpretation would allow law schools to violate federal civil rights laws if they do so as a matter of conscience.

Justice Sandra Day O’Connor pointed out that colleges are still “entirely free to convey its message.” They could, for example, put signs all around the recruiters stating their opposition to the “Don’t Ask, Don’t Tell” policy. Military recruiters are willing to wade in unfriendly arenas and make their case for a military career to perspective law students. It is the law schools that seem unwilling to fairly compete in the arena of ideas.

New Chief Justice John Roberts made clear the choice to the attorneys representing the law schools. “You are perfectly free to do that [express your opposition to military policy by banning military recruiters], if you don’t take the money.” With this single statement, Justice Roberts applied the King Solomon test to assess the value these schools really put on their expressive conduct.

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