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FAIR v. Rumsfeld Update:

Doug Lederman at Inside Higher Ed has an exhaustive and linik-filled article on the various positions of parties and amici of the FAIR v. Rumsfeld litigation, including links to a number of the amicus briefs that have been filed in the case. John Eastman has weighed in with a typically interesting and provocative brief making an originalist argument.

Paul Caron has more on Harvard's decision to reverse itself and to permit access to military recruiters after previously excluding them. An early summary of the positions in the case is here.

DavidW (mail):
Todd, you mention a "linik-filled article".

What is a linik? And how many of them does it take to fill an article? ;)
9.22.2005 1:27pm
Larry (mail) (www):
Well, I know that John Roberts was very clear on the issue: the Supreme Court reads every partisan amicus brief filed and counts the signatures to see which way it should rule. Didn't he once tell the truckers, "Go ahead! File all the amicus briefs you want. Make it very clear that this is a political issue. They will all be read."

I mean come on.... besides the states (who, I think have a distinct legal interest in the outcome), everyone else just seems to be cheering for one side or the other, and most of them are just doing what their donors want (or specifically request).

Anyway, I guess this gives law students something to do when criminal litigation clinics require too much (dirty) client contact and responsibility.
9.22.2005 1:49pm
Hans Bader (mail):
There is no logical stopping point to FAIR's challenge to the Solomon Amendment. FAIR's challenge is based on the theory that a college's own nondiscrimination policy requires that third parties like recruiters not discriminate on precisely the same criteria as the college itself.

If the military stopped excluding gays tomorrow, they could still be barred from campus under FAIR's theory, because the military doesn't (for perfectly sensible reasons) recruit the blind or the deaf or people of advanced ages -- something that constitutes age discrimination and discrimination against the disabled.

Schools ban discrimination based on age and disability, not just sexual orientation. So if they can use the First Amendment to override the Solomon Amendment and exclude recruiters who discriminate based on sexual orientation, then they can also exclude recruiters who discriminate based on age and disability -- meaning that the military will never be able to recruit unless it recruits elderly, blind, and deaf people for any position in the military.

Given the disdain and hostility of many academics for the military, I can easily see some of them using this as an excuse to exclude the military if FAIR wins the Rumsfeld case, even if the military drops its ban on gays and lesbians.

I'm all in favor of civilian government agencies not discriminating against the disabled and the elderly, and I believe such agencies should accordingly provide the disabled with reasonable accommodations, such as providing TTY's, permitting seeing-eye and hearing-ear dogs, etc. But the battlefield doesn't permit any accommodation, reasonable or otherwise. It's a struggle for life and death. Non-discrimination principles don't always apply on the battlefield.

FAIR's argument that the mere temporary presence of a recruiter infringes the First Amendment rights of a public or private college necessarily implies that a longer presence of someone who disagrees with its antidiscrimination policies -- say, admitting to a four-year undergraduate program an Evangelical Christian whose church discriminates against gays, or a veteran -- would be an even greater infringement.

That argument thus calls into question long-standing federal laws allowing the Attorney General to sue public universities for discrimination based on religion (42 USC 2000c-6), and forbidding colleges to discriminate against veterans in admissions.

In essence, FAIR's argument, although styled as merely opposition to discrimination against gays, would in fact open the floodgates to discrimination by public universities based on religion and veterans' status, and to permanent exclusion of the U.S. military from public institutions supported with U.S. government money.

It's hard to imagine why the Third Circuit bought such a radical argument from FAIR. The Supreme Court should reverse the Third Circuit and uphold the Solomon Amendment.
9.22.2005 2:40pm
TC (mail):
If the federal government didn't help fund state and private schools' education, then this whole issue would be moot.

But instead it looks like the schools want to play both sides of the issue -- they'll glad accept federal funding, but work hard to keep from supporting the same government that defends them and provides them with their funding.
9.22.2005 3:04pm
HLSVet (mail):
I'm a veteran and a student at HLS. This is what I wrote to my family about the situation. I'm curious what VC bloggers and readers think.

---

For now, I continue to be frustrated with certain aspects of the debate--it's very much alive on campus.

# First, and probably foremost, nobody acknowledges that the "don't ask, don't tell" policy is set by Congress, not by any uniformed member of the military. If the AALS were serious about this issue, they should block on-campus recruiting of all employers connected to Congress. Denying the military some JAG officers will do nothing to deter Congress or push Congress to change its policy. It will just hurt the Army. Congress will only feel the sting when its members find it difficult to get summer legal interns for their work unrelated to the military.

# Further, even if the military were filled with homophobes (which I don't think it is), the most effective approach to changing the culture would be to encourage gays and gay-tolerant people to join. Instead, we see gay-rights groups trying to keep law students out of the military. Why do these groups not try to change the institution from within?

# Finally, the HLS administration is somewhat disingenuous. They want to keep the military recruiters off campus until the "don't ask, don't tell" policy is changed. They feel it "tears at the fabric of our own community," according to a recent campus-wide email sent by Dean Kagan. But simultaneously, they argue in amicus briefs, that their denial of military recruiters from campus won't hurt the military that much, since the Veterans' Association helps facilitate recruiting of students who actually do want to join JAG. If they really wanted to send a message to the military, and if they really thought that the policy tears the community apart, why do they continue to emphasize and encourage the recruiting assistance of the Vets' Association? If the policy and the recruiting is ugly, the University shouldn't find it any more pretty merely because it's laundered through the Veterans.
9.22.2005 3:07pm
Gary McGath (www):
The colleges want the taxpayers' money, but deny the logic which follows: that the government can control their actions by threatening to withhold the money taken from us.

(Full disclosure: I work for Harvard.)
9.22.2005 3:07pm
billb:
TC, it's generally _not_ the education dollars that could evaporate (as scholarship money is specifically excluded according to the fine article) but DoD research funding.
9.22.2005 3:11pm
TC (mail):

# First, and probably foremost, nobody acknowledges that the "don't ask, don't tell" policy is set by Congress, not by any uniformed member of the military. If the AALS were serious about this issue, they should block on-campus recruiting of all employers connected to Congress. Denying the military some JAG officers will do nothing to deter Congress or push Congress to change its policy. It will just hurt the Army. Congress will only feel the sting when its members find it difficult to get summer legal interns for their work unrelated to the military.



10 USC 654. I've repeated this cite ad nauseam but no one listens. Everyone says "the military discriminates," when the military is only following the law.

You're right -- the way to change the policy is to talk to your Congressman. Attacking the military isn't going to get it changed.
9.22.2005 3:17pm
Larry (mail) (www):
HLSvet, and TC, Well, I agree with the above posters that homosexuals should be encouraged to join the military. In fact, anyone that disagrees with the legal positions taken by the military should be encouraged to join. However, if you agree that Congress has the power to regulate the military, then as a purely theoretical matter, an individual gay person can't do any good -- even if he worked his way up to be Judge Advocate a branch . Arguably, if they became a judge in one of the service courts of criminal appeal they might be able to impose their "personal views" upon the army, but I thought we were against all this imposition of "personal views" anyway.

(I guess people who disagree with the whole concept of war shouldn't join, but I really don't know too many actual passivists.)

As a practical matter, I think that homosexuals, homophiles, and even self-described liberals should join the armed forces, because I think that they will (and have) had a very positive effect on the Armed Forces.

However, FAIR is not taking the position that their conduct is meant to actually change the policy of the military by denying them JAs. Instead, it is taking the position that they have a right to associate with anyone they want, and, in doing so, extend all the benefits that it confers on one member on any other member -- that is, not treat gay students differently than straight people. Therefore, while the military is probably bound by the statute, being forced to accord different "recruitment rights" to different students, the logic goes, violates one of the major reasons that people at Harvard associate with each other: not to discriminate on the basis of sexual orientation.
9.22.2005 3:25pm
Cornellian (mail):
I think it's pretty well established that the government cannot, for example, makar your eligibility for federal deposit insurance coverage contingent on signing a form saying "I hereby give up my First Amendment right to criticize the government." So yes, these law schools are saying they'd like to receive the funding that everyone else gets, and not to have to give up their constitutional right to freedom of association in order to do so.

"But instead it looks like the schools want to play both sides of the issue -- they'll glad accept federal funding, but work hard to keep from supporting the same government that defends them and provides them with their funding."
9.22.2005 4:08pm
TC (mail):
And it's pretty well-established that the government cannot, for example, revoke your tax-exempt status as a university contingent on your university allowing inter-racial dating.

Oh, wait -- maybe it's not...
9.22.2005 4:22pm
randal (mail):
I agree, Cornellian. Seems like the obvious definition of "compelled speech" to me.

Neither side disputes that the first amendment is implicated. The federal government isn't allowed to use financial incentives to coerce people's first-amendment rights away from them.

The question here is different since compelled speech is an indirect effect rather than the stated goal of the law, so the "narrowly tailored" test applies. Withholding the amount of (mostly unrelated) money at stake is hardly narrowly tailored.

Many people are arguing here that allowing recruiters on campus shouldn't count as speech. Maybe, but nobody's arguing that in the case. Given that free speech is the issue, FAIR's case is compelling.

The argument that's completely wrong is that the federal government can condition its grants on whatever it wants, like a private contractor can. It totally doesn't work that way at all. Like that one quote, about how Universities can "choose not to associate with the funding" - what a load.
9.22.2005 4:44pm
HLSVet (mail):
I think the final decision is going to turn on whether law schools are expressive associations or not.

Andrew Morriss has a forthcoming article (linked here earlier this summer, I think) that law schools are not like the Boy Scouts or the St. Paddy's Day parade organizers. HLS is a business, not an association with a message.

Otherwise, as my ConLaw prof pointed out last week, post-Dale (the Boy Scout case), Ali's BBQ in Birmingham could call itself an expressive association whose message is two things: white supremacy and good BBQ. This could allow them to get out of the holding in Katzenbach v. McClung.

Just any old business can't call itself an expressive association and use 1A to get around Congress.
9.22.2005 5:01pm
TC (mail):
If this is compelled speech, then it certainly should be a victory for FAIR. But I don't think it's compelled speech.

All that the military is asking for is what every other recruiter gets when they come onto campus: a classroom or similar forum during students' free time (lunch) to present their pitch and an interview room to conduct their interviews.

When various law firms, organizations, etc., present their recruiting spiels on campuses, I don't think any students think that those groups represent the views (are the speech of) the law school. The law schools are not compelled to endorse everything that the law firm or organization believes in.

Many people are arguing here that allowing recruiters on campus shouldn't count as speech. Maybe, but nobody's arguing that in the case. Given that free speech is the issue, FAIR's case is compelling.


Actually, that is exactly one of the government's arguments in this case:

The Solomon Amendment does not violate the compelled speech doctrine because it does not force educational institutions to express any support for the restrictions on service in the military by homosexuals. Institutions need not utter any words of endorsement for that policy; nor must their representatives carry a sign expressing support for that policy. Educational institutions need only provide military recruiters the same access to students as they provide to the recruiters of other employers. The speech of the recruiters remains the speech of the government and the military-not the institution.
9.22.2005 5:17pm
Phillip Carter (mail) (www):
HLSVet-

As a vet and UCLA alum, I had much the same reaction to the Solomon Amendment issue. We (the UCLA law vets) filed an amicus brief in FAIR v. Rumsfeld at the 3rd Circuit level; I would encourage you to read some of the excellent amicus briefs filed before the Supreme Court in this case, which make similar arguments to yours. I would also point you towards the declarations filed by each Judge Advocate General in the case, available at the Georgetown site for the Solomon Amendment case.

Regarding your political point, I wrote something similar last August in Slate:
. . . even if the students and professors win, this will be a Pyrrhic victory at best. There are a couple of cases pending in the military justice system that could, theoretically, be used to overturn "don't ask, don't tell" and/or the military's sodomy laws on the basis of what the Supreme Court said in its landmark 2003 gay rights decision Lawrence v. Texas. And the Servicemembers Legal Defense Network says it may file a direct challenge to the exclusion policy within the year. But no matter how well the law students and professors do in their respective cases, they will not achieve the full victory they are after because a victory over the Solomon Amendment will not change the military's policy on gays in uniform—something that has been carved into federal statute and upheld by four separate federal appellate courts.

Indeed, the fact that so many courts have ruled in favor of the military on this issue may signal that courts are the institution least equipped to deal with it. For one thing, the Constitution explicitly grants Congress a monopoly on power in this area. ("The Congress shall have Power … To make Rules for the Government and Regulation of the land and naval Forces.") This makes it very easy for the government to win by asking the court to defer to the judgment of Congress and the president on this issue. For another, these kinds of issues—heavy as they are with policy debate and analysis—are not well-suited to judicial decision-making, which can generally consider only the arguments and evidence on the record. Recently, the most progress on this issue came through the election of President Clinton in 1992, although his pledges to end the ban on gays in the military ultimately stalled for political reasons. If future movement on this issue happens, it will likely occur with the election of another politician willing to change this policy—not by judicial fiat.

Regardless, the plaintiffs in the Solomon Amendment case might still say their litigation has value. Even if they can't change "don't ask, don't tell" directly, they will send a powerful symbolic message by kicking the U.S. military off the nation's elite university campuses (or at least out of its law schools). Perhaps. But as symbolic protests go, this one might do more harm than good. First, removing military recruiters and ROTC units from colleges will alienate a great number of veterans—including those, like me, who feel that gays should be allowed to serve their nation in uniform. On this issue, veterans' voices have a disproportionate impact because of their personal credibility on issues of military readiness and personnel policy. As voters, community opinion leaders, and elected officials, veterans will likely play a key role in any future political debates on this issue. And so they are one constituency the gay rights community cannot afford to alienate if it ultimately wants to overturn "don't ask, don't tell" through the political process.

Second, and perhaps more important, kicking the military off elite college campuses will undermine the process of social change within the military. Today's all-volunteer force contains a cross section of American society at large—nearly every race, class, religion, and region are represented in some way. When young men and women enter the service, they change in many ways. But they also remain the same in others, often carrying their core beliefs and values with them throughout their enlistment, and sharing those values with their brothers and sisters in arms. The U.S. military may be the last true melting pot in our country.

To the extent that society has become more tolerant of gay people and more inclined to honor their rights, so too has the pool of young men and women joining today's military. Nowhere is this more true than at America's elite colleges and universities, such as those now seeking to eject the military. The very people with the potential to change military attitudes the most on this issue—newly minted lawyers from places like Yale, Harvard, or my alma mater, UCLA—are the ones who the plaintiffs would deny the opportunity to learn about and consider military service in order to make a symbolic protest about the evil of "don't ask, don't tell." By doing so, this protest will impede institutional change within the military on this issue by at least a decade, if not a generation.
9.22.2005 10:57pm
Bruce Hayden (mail) (www):
My problem with the FAIR side is that for the most part, it is the faculty that are opposing the recruiters, and they are precisely the people least affected. On the other hand, as noted, some students are on the other hand pointing out that their right of association is being infringed by FAIR et al.

I find it frankly absurd to think that in a time of war, a lot of the students wouldn't want to at least consider JAG careers. Maybe not half, but it is highly likely that there is a much, much, higher percentage of the student body in favor of JAG recruiters on campus than faculty. And yet, it is the faculty who are trying to protect those students from joining the military.

I should add that the faculty no doubt can easily avoid even seeing anyone in a military uniform. They are just being big babies when they are being thwarted from controlling whom their (adult) students get to see.
9.23.2005 12:50am