Supreme Court Decides to Hear

[Guest MikeSC]

For those who don't know, a law was recently passed (The Solomon Amendment) that forbade universities from receiving federal funds while forbidding the military from recruiting on campus.

 

Here's a very good recap of the facts of the case:

Is the Solomon Amendment Constitutional?

The Supreme Court Looks at the Law that Prohibits Federal Aid If a School Refuses to Permit Military Recruiters on Campus

By MARCI HAMILTON

[email protected]

----

Thursday, May. 05, 2005

 

The Solomon Amendment is a federal law that penalizes schools that do not permit military recruiters on campus, by cutting them off from receiving federal funds. As I discussed in a prior column, some law schools and law professors have objected strenuously to this law.

 

These schools and professor say they do not want on their campuses any hiring organization that discriminates on the basis of sexual orientation. Thus, they seek to preclude the military from recruiting on campus because of its "don't ask, don't tell" policy regarding homosexuality. (The basis for the "don't ask, don't tell" policy is a federal regulation, which is itself predicated on a federal law prohibiting homosexuals from serving in the military.) But they don't want to lose federal funds if they do bar the military. Hence, they are challenging the constitutionality of the Solomon Amendment.

Click here to find out more!

 

Now, their challenge has come before the U.S. Supreme Court. The name of the case is Rumsfeld v. Forum for Academic and Institutional Reform (FAIR). However, the constitutional claim before the Court is not based on a theory of sexual orientation discrimination. Instead, it is based on a theory that the Solomon Amendment violates the First Amendment's Free Speech Clause.

 

The Supreme Court granted review this week. But the case will not be decided until the Court's next Term, which begins this October.

 

The answer the Court should - and very probably will - reach is clear: There is no First Amendment violation at all here. The lower federal court - the U.S. Court of Appeals for the Third Circuit - found such a violation, based on tenuous logic, but the U.S. Supreme Court is unlikely to make the same mistake. Indeed, the Court may have taken the case precisely to correct the Third Circuit's error.

 

The Constitutional Issue: Looking Past Slogans, to Substance

 

Madison Avenue has nothing on the law schools and law professors who have brought this case. They have named themselves FAIR (the Forum for Academic and Institutional Rights, Inc.). And their spokesperson, Joshua Rosenkrantz, has called the government "bigots" for maintaining the "don't ask, don't tell" policy.

 

So if the law schools and professors had their way, this case would be FAIR against the bigots. With that opposition, it's pretty clear who should win - so if slogans made constitutional law, the result in this case would be foreordained: A victory for FAIR. But fortunately, constitutional law is based on analysis, not slogans. And here, close analysis favors the government, not FAIR.

 

No One Will Confuse the Military's Message with the Law Schools' Message

 

FAIR has had to twist the law to try to turn what really is a discrimination claim - one the federal courts have already rejected - into a free speech claim.

 

To make this tortuous argument, FAIR must claim that anyone who sees military recruiters on campus will assume the military's policy on homosexuals is endorsed by the school. Therefore, the school, by being forced to host the recruiters (or lose funds), is forced, in effect, to mouth the government's message -which, FAIR argues, violates the First Amendment.

 

But the assertion that anyone would confuse the military's message with the host school's message is ludicrous. It is well-known - and statistics and anecdotes bear out -- that law schools and their faculty are overwhelmingly dominated by liberals. Indeed, the legal academy is famously a haven for liberal orthodoxy and fundamentalism. And one of liberals' well-known values is equality regardless of sexual orientation.

 

It's important to note what the Solomon Amendment does not do. It does not prohibit on-campus protests of military recruitment. It does not prohibit law professors from arguing, in class, that the military's "don't ask, don't tell" policy is illegal or immoral discrimination - and discouraging students, for this reason, from working for the JAG Corps.

 

Liberal professors, students, and administrators can post signs, buy billboards, and even wander the halls with bullhorns in case any student dares to have the temerity to think of serving his or her country during a time of war and international instability. They can post "informative" notices, stuff student mailboxes, even run streaming video through the hallways of the law schools. They can also host conferences, teach courses, and establish programs to vindicate their views -- and they need not (indeed, usually will not) invite anyone who disagrees with them.

 

In short, the Solomon Amendment does not gag the legal academy in any way. It just requires the academy to give the military a seat at the table - among all the other legal employers who may visit, including, say, the ACLU - to meet with students who are interested in interviewing with them.

 

The idea that anyone will think recruiters' views are the schools' views is therefore ridiculous. Sweatshop law firms recruit on campuses. Does anyone think the law schools, by allowing them to do so, send a message that young adults should have no life? Big firms that defend polluters, cigarette makers, defense contractors, and the like --- the "bad guys" under the liberal agenda - recruit on campus, too. Yet their presence in the law school waters down the school's liberal orthodoxy not an iota, and the contrast between their views and those of the school and its professors - who speak out in class every day they teach - is plain to all.

 

Because the Amendment doesn't gag anyone, the reality is that any student who signs up for such interviews has to be thick-skinned, determined, or both. As I discussed in a previous column, I watched students at NYU Law School literally run the gauntlet to simply interview with the military (let alone take such a job). Thus, it is laughable to claim - as FAIR does, and must -- that the military's policies could, or would, be ascribed to law schools' dominant powers.

 

This Suit Is a Political Tactic - Not a Genuine First Amendment Case

 

While we're being real, let's face this reality: This suit is all about the will to power of political majorities in the law schools. They don't like the "don't ask, don't tell" policy - and therefore, they don't like the Solomon Amendment (because God forbid that they should sacrifice free federal money in order to honor their principles).

 

But attempts to challenge "don't ask, don't tell" directly in court have failed. So what better way for law schools and their liberal faculty members to try to undermine the policy - and to make their point - than to make it difficult for their students to be recruited by the military? Whether there might be students who disagree with this policy balance, or simply are looking for a job to support themselves, is utterly irrelevant to the members of FAIR; after all, the professors already have their legal jobs - and, probably, tenure.

 

The Reality Is That Law Schools Allow Discriminatory Recruiting All the Time

 

Moreover, there is a richly ironic element to the position being taken by the members of FAIR. They try to single out the military, claiming it is the only discriminatory employer they allow to enter their building. But again, the reality is to the contrary.

 

Top law firms in New York and elsewhere still count precious few women and minority partners. Women who have babies routinely receive less favorable treatment than their male counterparts: Pregnancy leaves often delay partnership consideration. Women on the "mommy track" are often offered "of counsel" jobs that leave them compensated far less than their male counterparts - sometimes, they are salaried (modestly) while males who entered the firm the same year, and perform at the same level, enjoy an equity share. The number of women who have been ushered out of the top legal position is legion.

 

Law firms would not dream of excluding these de facto discriminators from their hiring schedules, though. Why? As long as the firms keep making the schools' students partners (at least, the white males among them), the schools can look forward to donations from wealthy, and hopefully generous, alumni. Those who serve their country in the JAG Corps are not, typically, filling law schools' (or their own) coffers.

 

Now, law schools might tell you that these firms say they do not discriminate on the basis of gender or race. But so does the federal government's "don't ask, don't tell" policy, which is sexual-orientation blind. So again, if FAIR claims it is targeting discriminatory employers, there is much hypocrisy involved.

 

Meanwhile, among all the different legal employers liberals may consider objectionable, the government has the best argument of all for recruiting on campus: Now more than ever, the military must be able to recruit the best and the brightest, because those are the minds that are needed in these difficult times.

 

And yes, the military needs to recruit liberal and moderate lawyers, too - not just diehard conservatives with enough moxie to seek them out even if they are banned from campus.

 

Do those liberals who decried the Bush Administration torture memos want more of the same from military lawyers? If not, it is up to them to encourage law students to become military (and intelligence) counsel.

 

Do liberals want accountability for the Abu Ghraib scandal? If so, they ought to encourage law students, regardless of politics, who are brave enough to look up the chain of command, when it comes to assigning responsibility.

 

Court Doctrine Compels Rejection of FAIR's Free Speech Claims

 

Unfortunately for FAIR, it's not just common sense and national policy that militate against their free speech claim; Supreme Court precedents do, too.

 

Here's a basic First Amendment principle: The government is limited in its ability to regulate speech, but it may regulate conduct much more easily. And what's going on here, looks like the regulation of conduct to me. The Solomon Amendment simply requires law schools that want to receive federal funds, to supply interview rooms and whatever other access private employers enjoy.

 

Supplying a room is an action. Providing, say, coffee and doughnuts is also an action. Putting the military recruiter's name on a recruiters' list might be speech, but barely; all it expresses is that the military recruiter is going to be at a certain place at a certain time, willing to talk to interested students.

 

Suppose, though, for the sake of argument, that actions such as putting recruiters' names on a list distributed to students - or welcoming them for coffee, or unlocking interview rooms - are deemed expressive conduct. Even so, FAIR's claim is strikingly weak.

 

Under Court precedent, regulation of expressive conduct triggers intermediate scrutiny under the O'Brien test. That test looks to see if the law at issue serves an important government interest, and if alternative avenues of expression are available.

 

Does the government have a legitimate, important, and even compelling interest to recruit the best and the brightest law students? Of course. Even FAIR concedes this.

 

Do the law schools have alternative means of expression if they are not permitted to keep their interview room doors locked? Obviously, they do - as I noted above.

 

The Supreme Court Has Already Rejected the "Unconstitutional Conditions" Argument

 

Readers may wonder: How in the world, given this doctrine, did the Third Circuit rule in favor of FAIR?

 

The answer is that it dragged out a hoary old doctrine that the U.S. Supreme Court has already rejected in a much more speech-restrictive context.

 

The "unconstitutional conditions" doctrine - not much used since the 1970s -- says that the government cannot condition its benefits on a diminution in First Amendment rights. FAIR argued (as one would expect, because liberal law professors love this argument) - and the Third Circuit agreed - that the law created an "unconstitutional condition," because it took away federal funds if the law schools did not open their interview rooms to military recruiters.

 

But this argument runs directly into the Supreme Court's 1991 holding in Rust v. Sullivan. There, the Court held that the federal government could condition federal medical funding on the requirement that a doctor not mention the option of abortion to pregnant women. Unlike FAIR, then, Rust was a case about gagging speakers. The doctor literally could not talk to the patient about a subject within the doctor's medical expertise. Yet even in this more extreme situation, the Court still rejected the unconstitutional condition argument, and held in favor of the government.

 

Some think that Rust was undermined by the Court's 2001 ruling in Legal Services Corp v. Velazquez, but that is questionable. The condition there was a requirement that lawyers paid by the government not raise arguments that might hurt the government's position. Again, as in Rust - but not in FAIR - a gag was involved. And - unlike in Rust or FAIR - the Sixth Amendment right to a fair trial was also imperiled.

 

In short, on-point Supreme Court precedent very strongly suggests the military ought to win this case - and FAIR ought to lose.

 

Beyond constitutional law, however, the law schools ought to rethink their position as a matter of policy and ethics, as well. The real message they are sending by this lawsuit - and their protests of military recruiting - is an ugly one: They are telling all of us just how much they care about the welfare of this country in difficult times.

 

Of course, liberal law schools and their professors publicly disavow any negative attitude toward the military. But their hyper-legalistic arguments regarding the Solomon Amendment betray a more troubling truth.

http://writ.news.findlaw.com/hamilton/20050505.html

It is stunning that law profs actually think they have a case --- but they think they do.

-=Mike

[Guest Wildbomb 4:20]

I agree in the sense that there is absolutely no basis of the suit within the First Amendment.

 

However, if they wanted to argue more in the sense of the 14th Amendment's Equal Protection Clause, that would make a TON more sense. And they would actually have a case here. Now, the problem is that the way the Amendment is written is for the states, and not the federal government. But a loose interpretation of the Fifth Amendment's Due Process Clause would more than easily apply.

 

Sometimes, it's doing just the extra bit of work that would allow you to pass such a law. I'm guessing the feds are arguing Article I, section 8 and Article II, section 2 powers...

 

--Ryan

...simple Constitutional arguments that the highest paid lawyers can't even fucking get right. Sometimes I really wonder...

[Masked Man of Mystery 0]

What Wildbomb said

[The Czech Republic 0]

I'd expect more content from a Professional Otaku than just "what he said." You're a PROFESSIONAL.

[kkktookmybabyaway 0]

Maybe he's the P. Diddy of professional otakus and just rides on the talent of others...

[The Czech Republic 0]

How do I say that word anyway? "Oh, da koo?" Or is it "Oh, tocc ooh"?

[Guest MikeSC]

I agree in the sense that there is absolutely no basis of the suit within the First Amendment.

 

However, if they wanted to argue more in the sense of the 14th Amendment's Equal Protection Clause, that would make a TON more sense. And they would actually have a case here.

Except that they don't seem to hold ANYBODY else to those standards than the military.

 

And, as the article pointed out, they seem to be arguing that having the military on campus indicates some support for their position, which is a position that borders on the silly.

Now, the problem is that the way the Amendment is written is for the states, and not the federal government.

What federal institution forbids the military from recruiting on campus while accepting gov't funds?

 

It seems like as big a no-brainer as not permitting a school that forbids blacks from attending from receiving federal funds.

But a loose interpretation of the Fifth Amendment's Due Process Clause would more than easily apply.

 

Sometimes, it's doing just the extra bit of work that would allow you to pass such a law. I'm guessing the feds are arguing Article I, section 8 and Article II, section 2 powers...

The concern is that the military is held to standards no other employer is held to.

 

Shall we go into the hiring practices of elite law firms? How about the sweatshop firms?

-=Mike

[Slayer 0]

"oh-tah-kooh"

 

I have nothing else to contribute

[Jingus 0]

I don't see why the government would withhold funds like that. If the school doesn't want the military to hang around on campus handing out flyers and pestering students, so what? Lots of schools have lots of weird rules about what you can and can't do on their grounds. At my college, they didn't allow us to have members of the opposite sex in our dorm rooms after midnight.

 

But there is no good Constitutional basis for fighting the law. 1st or 14th amendments? Hell, you might as well throw the one about quartering troops on top for all the good it'd do.

[Guest MikeSC]

I don't see why the government would withhold funds like that. If the school doesn't want the military to hang around on campus handing out flyers and pestering students, so what?

Because they are FORBIDDING them from appearing there. It's not like the profs are not free to criticize.

 

But if you're going to accept government funds, the government should have the ability to let students get ITS side of a story when it comes to employment.

 

Why are the profs so terrified of allowing the military to recruit?

Lots of schools have lots of weird rules about what you can and can't do on their grounds.  At my college, they didn't allow us to have members of the opposite sex in our dorm rooms after midnight. 

And they enforced that consistently.

 

The only group forbidden from recruiting on campus is the military.

 

Again, do you really want to delve into the hiring practices of elite law firms?

[Guest Wildbomb 4:20]

Well, I suppose it doesn't make much sense for me to wind up in a legal argument now with Mike considering he's gone...and the fact that he was someone who could actually argue the law with me (along with SJ and a scant few others)...but here goes anyways...

 

Just because the judiciary does not apply the restrictions to anyone except for the military does not make it unconsititutional. Because the military is under the control of the Executive and not that of the states or the people, it is subject to Article III, section 2 of the Constitutional, also known as Judicial Review. (Hence, the power for the Supreme Court to interpret/rule on the Constitution and constitutionality of other issues.) The way that I read this is not that the Executive's Article II, section ii powers are infringing on First Amendment rights (although the more I look at it, the more that this view does wind up applying in some ways more than others), instead, I would argue that the military is violating the Fifth Amendment guarantees of life, liberty, and property.

 

However, a ruling striking down the Solomon Amd would probably wind up changing the hiring practices of other companies, as slowly but surely, I feel that they would need to be held to this standard. But then again, private companies aren't exactly under the Powers of the President. Although they do tend to fall under Congress' realm. So if the law is struck down, Congress will need to wind up applying these same standards to private companies. This is where I think Mike went wrong with his "activist judges" claims all of the time: it was not up to them to regulate and make everything equal; that goes to Congress. But if Congress failed to do their job, it was the fault of the judges. Not the best logic, but I can understand where it came from.

 

--Ryan

...*sigh* the end of an era, I suppose...guess it's up to Slapnuts, kkk, Cerebus, Jobber, and SJ to keep me interested round these parts...

[SuperJerk 0]

Slapnuts! swore off the CE folder in disgust a day or so MikeSC was banned.