Jack Balkin has an illuminating post on the Solomon Amendment decision, Rumsfeld v. FAIR.
Balkin explains why he was a “reluctant” supporter of the litigation against the Solomon Amendment:
…I believed that, if successful, these lawsuits might cause problems for other areas of antidiscrimination law, in particular, in the area of Title VI and Title IX law. The reason is that Title VI and Title IX impose antidiscrimination obligations on schools that receive federal funds. If the FAIR and Yale plaintiffs had first amendment rights to be excused from the Solomon Amendment, racist and sexist institutions might claim that they were entitled to be excused from Title VI and Title IX obligations. There are ways to distinguish the two situations, but it requires some fairly fancy footwork and it might cause even more problems down the road. Therefore, when I joined the Yale suit as a platinff, my preference was for a much narrower theory of the case, one that would pose no danger of undermining federal antidiscrimination laws.
I think this helps explain why FAIR lost, and lost so badly, in the Supreme Court. There was simply no constituency on the Court, and precious little constituency off the Court, for the sorts of broad speech and associational rights being pressed by the litigants in the context in which they pressed it. Aside from the interesting doctrinal issues raised, neither conservatives nor liberals liked the claims. Conservatives defer to the perceived needs of the military and to Congress’s “judgment” about those needs, even though that judgment was largely a fiction in this case. (There was no evidence that the military needed access to law school buildings in order to recruit a sufficient number or quality of law students to provide legal services. Even the Defense Department initially opposed the [...]