Update: My argument here has a fatal flaw as far as the law goes (perhaps it survives in ethics): it ignores the public/private status of the various players. It is perfectly legal for a private actor such as a private university’s law school to control the speech of people involved with it. Yale Law School could say that no law firm that opposes tort reform could recruit there, for example, or that it won’t support summer internships to work for anti-abortion public-interest law firms.
Thus, it would be consistent for Yale to object to a government attempt to stop Yale from suppressing the speech of its students or other people. The analogy would be to a Baptist school that lost federal funding because it refused to admit non-Baptist students. (I don’t know whether that has been fought in the courts or not, but that takes us back to the central arguments in Rumself v. FAIR).
July 15: At VC, Todd Zywicki links to the BRIEF AMICUS CURIAE OF LAW STUDENTS AND LAW PROFESSORS IN SUPPORT OF REVERSAL for Rumsfeld v. FAIR, the Solomon Amendment case. It is obviously constitutional for the government to refuse federal funds to universities that refuse to allow military recruiting, or, at least, it is more clearly constitutional than refusing funding to universities that discriminate by race, etc. (more…)