FAIR's Fair?
Commentary: OutRight
Much of the reaction to the Supreme Court’s 8-0 decision in Rumsfeld v. FAIR to uphold the Solomon Amendment has been ill-informed. Commentators, especially in the blogosphere, seem either not to have read the decision or, if they did, seem to have ignored what it actually held in order to gloat about (a) their legal perspicacity on an issue the Supreme Court did not decide, or (b) the comeuppance delivered to supposedly anti-military law professors who opposed the law, or (c) both. What these commentators missed, however, was the very real way the Supreme Court managed to mangle the First Amendment.
You’ll recall that the Solomon Amendment, a federal law first passed in 1994, prohibits universities from receiving federal funds if any part of the university refuses to give military recruiters access to their facilities. In practice, this means that law schools, which ban on-campus recruiting by all employers who discriminate on the basis of sexual orientation, have to waive their anti-discrimination policy when it comes to the military, which discharges service members for homosexuality.
Law schools argued that they have First Amendment rights to ”speak” through their non-discrimination policies and to ”associate” only with those employers who agree to abide by these policies. They further argued that denying them all federal funds for exercising these rights violated the ”unconstitutional conditions” doctrine, which generally prohibits the government from conditioning funds on the recipient’s agreement to give up constitutional rights. The unconstitutional-conditions doctrine has special significance in an era of annual federal budgets approaching $3 trillion and a Congress eager to use this enormous economic leverage to coerce individuals, associations, and states to do its bidding.
As the case was pending in the Supreme Court, most commentary focused only on whether the government could withhold all funds for this purpose. A common populist reaction to the litigation went something like this: ”If you don’t want to let in military recruiters, just don’t take the money.” This reaction often assumed that while Congress could refuse to fund universities that banned military recruiters, it could not require access for military recruiters. In other words, even people critical of the lawsuit generally believed that the universities had a constitutional right to bar military recruiters. Few commentators opined that the underlying First Amendment claims were meritless.
Yet the Court didn’t decide the case on the ground that Congress could withhold funds. Instead, it decided that Congress could directly mandate that universities let military recruiters in their doors — despite their strong moral and professional objections to anti-gay discrimination.
To reach that surprising result, the Court rejected three different free-speech claims raised by the main plaintiff, the Forum for Academic and Institutional Rights (FAIR). It held that schools are not ”compelled” by the Solomon Amendment to say anything very important, are not objectionably required to host the speech of the government within their own forum, and are not denied the right to engage in expressive conduct. In each case, the Court arguably narrowed its own precedents, limiting the reach of free-speech rights.
The Court also rejected the schools’ claim, relying on Boy Scouts of America v. Dale (a 2000 decision upholding the right of the Boy Scouts to exclude a gay scoutmaster), that their freedom of association allowed them to exclude military recruiters. Gone was the Court’s insistence, explicit in the Dale opinion, that we must defer to an expressive association’s own judgment about what types of government regulation would impair its message.
One could support the Court’s result — that the Solomon Amendment is constitutional — while still being quite concerned about its potential narrowing effects on First Amendment freedoms. The upshot is that the government could require schools, both public and private, under threat of criminal sanction, to allow its representatives to appear despite the schools’ strong principled objections. That Congress chose not to do so in the Solomon Amendment is now a matter of legislative grace, not constitutional freedom.
Much criticism of the law schools focused on their alleged hostility to the military per se, not their opposition to the ”Don’t Ask, Don’t Tell” policy. Critics argued that we should not, in time of peril, do anything that hampers military preparedness. Further, some gay critics insisted, tying pro-gay sentiment to such an ”anti-military” cause was bad politics.
All of this criticism is off-base. As a member of a law faculty who takes seriously the need to oppose invidious discrimination against students, I would nevertheless have had a hard time voting actually to exclude military recruiters. I appreciate the country’s needs for more military personnel (which is one of the reasons I oppose DADT), even though nobody has presented one shred of evidence that the military must have access to law-school buildings in order to recruit a sufficient number and quality of law students.
Law schools should have the right to exclude those who exclude gays, just as the Boy Scouts should have the right to exclude gays. But there is a difference between defending the right to do something and defending the rightness of doing it.
Finally, a principled civil-rights movement cannot confine itself to fighting for popular liberties. We need reminding, especially in times like this, that the freedom to differ is not limited to things that do not matter much. In this decision, the Supreme Court seems to have forgotten that maxim.
Dale Carpenter is a law professor. He can be reached at outright@metroweekly.com.
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