Three of my favorite topics, all in one post: schools (albeit of the higher education variety), the military, and law.
Today the Supreme Court heard oral arguments in the case of FAIR v. Rumsfeld.
Put succinctly, in 1996 (who was President then?) Congress passed a law (known as the Solomon Amendment) that required universities to grant military recruiters access to students on campus. After the 9/11/2001 terrorist attacks, the requirement was strengthened to granting access "equal in scope and quality" to that which is granted to other potential employers. In other words, you can't compel military recruiters to recruit from the closet (do you get the pun???!!!) whilst letting all other potential employers have access to the Student Union Building during a Job Fair. Schools must allow recruiters on campus or risk losing all federal dollars. Imagine--can't accept federal student loans, research dollars, anything! The post-9/11 addition to the law made compliance more strenuous as well--if even one sub-component of a university (say, the School of Law) doesn't grant access to military recruiters, the whole university could lose federal funds.
Using the Congressionally-mandated military barring of homosexuals as a pretext (now do you get the pun in the last paragraph?), several law schools formed an alliance (FAIR) and filed suit against, who else, Donald Rumsfeld. The claim is that the schools' 1st Amendment freedom of association is being denied by compelling them to associate with people (military recruiters) they don't like. The Third Circuit Court ruled in their favor last year, and the government appealed. The US Supreme Court heard the case today.
My thoughts:
1. The military discriminates against all sorts of people. It discriminates against the young and the not-quite-as-young; the army recently increased the maximum age of new recruits to 39, for example. Given height/weight standards that military members have to meet, the military discriminates against the fat. It discriminates against the handicapped--you can't enlist if you're missing certain body parts (including that one, guys). FAIR's choosing to rest its case on the exclusion of gays from the military (mandated by Congress) and the don't-ask-don't-tell policy (promulgated by which President?) seems disingenuous at best.
2. The US Solicitor General, arguing for the Solomon Amendment and seeking to have the 3rd Circuit's ruling overturned, focused his argument on Congress' spending power. No one is forcing these schools to take federal money. Don't want to allow recruiting? Don't take the federal money.
3. An even stronger case for the US would have been the Congress' power to raise an army. This power is granted in Article I of the Constitution. It seems clear to me that the power to raise an army includes the power to recruit citizens to join that army; Congress, then, is being generous by enforcing that granted authority by only withholding money from schools that do not allow recruiting. If Congress truly wanted to invoke its enumerated powers here, it could legitimately make the penalties much more severe.
This clearly isn't a 1st Amendment "freedom of association" case. The school doesn't have to agree with the recruiters in order to allow them access to students. Additionally, the law doesn't prohibit the students from protesting the recruiters on campus (although they'd be worthless f***s if they did). I'm hoping that the Supremes smack the 3rd Circuit pretty hard with this case.
The Volokh Conspiracy, a top-notch lawblog, has more information, especially in the comments.
Darren, I watched this on C-Span yesterday, and it was great.
ReplyDeletePoint #3 was brought up by the government lawyers. The justices seemed to agree, but also seemed to say that this wasn't the real issue, because it wouldn't really hurt our ability to raise an army if Yale Law School forbade recruiters. They seemed to want to keep this focused on the First Amendment.
Also, the military doesn't actively discriminate against gays. One of the justices (Souter I think) pointed out that the records show that applicants are never asked about their sexuality in interviews. There is no overt discrimination practiced.
It's really all about the money. Chief Justice Roberts noted that the statute in question leaves a very easy way for Yale to express its unhappiness with the policies about gays - ban recruiters. It's as protected as the discriminations of Bob Jones U. No problem doing that, but you can't fund that school with tax money any more than Bob Jones University can.
On the steps outside, the dean of Yale Law basically said that isn't an option because you can't run a university without pubic funds. He blew me away with his hubris and audacity. Dean Koh, it's not your money.
I think the final word goes to Justice Stephen Breyer: "the remedy for speech you don't like is not less speech, but more speech,"