So it's not really news at this point, but the
Supreme Court ruled against the Forum for Academic and Institutional Rights (FAIR) yesterday.
Although I was initially floored by the prospect that the 8-0 (unanimous) decision meant that Lawrence would soon be a distant memory, but it seems that things may have been a little more complicated than I initially thought.
FAIR wanted the court to hold that the Solomon Amendment (coupled with the military's "Don't Ask, Don't Tell" policy) created an "unconstitutional condition" that would deny funding to law schools who protested the military's recruiting policies. They also wanted the court to hold that forcing law schools to host the military violated the schools' rights to free speech under the First Amendment. The court didn't really rule on that first issue, because it found that there wasn't a First Amendment right infringed by the government's practice.
Again, I was really upset by this ruling at first, and I'm still not happy that the ruling didn't go the right way, but upon reflection, I think that there are definitely good things to take from the ruling.
(1)
We weren't going to win anywayEven though Alito hasn't taken his seat, without O'Connor to take a middle-of-the-road approach, there was no way that 5 of the 8 remaining judges would rule in favor of exclusion of the military in order to allow free expression of the homos.
(2)
Narrow vs. BroadEven if we did win on the unconstitutional conditions doctrine, at best (and in a dream world), the ruling would have been 5-3, and wouldn't have lasted longer than another SCOTUS term. By not even reaching the unconstitutional conditions question (with respect to legal recruiting), the court leaves it open to be decided when the issue has seen some more litigation, and once the underlying right has been more clearly explored by courts.
The narrower question of whether the Solomon Amendment infringed on a law school's right to oppose the military's policy was the issue the court heard. Without going into too much detail here, I'll say that the court viewed the First Amendment rights of the law schools very narrowly here, and found that none of their rights were infringed by the requirements of the Solomon Amendment.
(3)
Questions unansweredThe narrow holding in Rumsfeld v. FAIR means that military recruiters can continue to recruit on law school campuses, and can deny funding to schools that attempt to prohibit military recruiting. It does not mean that the "Don't Ask, Don't Tell" policy is unquestionably constitutional or that law schools have no means to exclude military recruiters.
The question whether "Don't Ask, Don't Tell" is unconstitutional has not, to the best of my knowledge, been placed before the Court. FAIR doesn't even mention those words in the opinion at all. Although most of us understand that SCOTUS is about as likely to rule against the policy of another branch of government as it would be to find that Article III (creating the judiciary) was unconstitutional, it's important to note that the question was NOT there, and can be addressed potentially through litigation or through social pressures.
Whether law schools can exclude military recruiters for some other means was also not decided. Although it's unlikely that any subsequent court will permit a total exclusion of the military - the court hinted that Congress would be within its power to require
preferential treatment to military recruiters, and the language of the current statute seems to require equal treatment at a minimum. However, this question was ultimately not decided because there was no right infringed. If FAIR could articulate a true First Amendment right, the Court would in theory have to rule on whether the Solomon Amendment infringed on this right.
So, considering that we were destined to lose, and that the loss was definitive (8-0), the end result of Rumsfeld v. FAIR is that law school recruitment practices are not protected speech. While it's still a loss, it somehow doesn't seem as devastating that way.
(4)
Parting thoughtAssuming that the Solomon Amendment doesn't require a law school to give preferential treatment to military recruiters, and only requires equal treatment, there may be a potential loophole. Schools could end certain recruiting practices, including OCI (on campus interviewing). However unpalatable that solution may be, it may be a measure some of the FAIR schools may wish to undertake.
Ending OCI would be a reversal of sorts. The "unconstitutional conditions" doctrine deals with the Spending Clause of the Constitution, governing those situations where Congress conditions funding on certain circumstances. This funding, usually for education or for highways, may be conditioned on a state changing its liquor laws or using the funding for a certain purpose. Although the states (or in our case, law schools) may not have a right to that funding, the condition may create an unconstitutional class of those who may receive funding and those who may not. If Congress disagrees with the Court's ruling in an unconstitutional conditions case, Congress may cease spending entirely.
The reversal here would be for schools to end a practice to avoid compliance with a Congressional Act.
Well. It's just a thought
Further Reading (and most of my sources):
http://www.scotusblog.com/movabletype/archives/2006/03/early_thoughts.htmlhttp://volokh.com/posts/1141690331.shtmlhttp://www.scotusblog.com/movabletype/archives/2006/03/court_upholds_s.htmlhttp://scotus.ap.org/scotus/04-1152p.zo.pdf (the slip op.)
