The United States Supreme Court heard the Solomon Amendment case
today (Rumsfeld v. FAIR). This case addresses the issue of
whether law schools can deny military recruiters the same access to
campuses that is provided to other employers.
The group
representing the law schools, the Forum for Academic and Institutional
Rights (FAIR) argues that the government may not condition federal
funds on whether a law school provides equal access to
recruiters. In doing so, the government is violating the freedom
of speech and freedom of association rights of the law schools that
don’t want to provide equal access. These schools believe that
the military’s don’t ask, don’t tell policy violates the
antidiscrimination policies of the law schools.
The government
argues that federal funding can be made contigent on providing equal
access. This requirement does not violate freedom of speech–this
case is about required conduct, not compelled speech or
association. Even if it is determined that speech and association
are implicated, the military can still restrict these fundamental
rights under what is called the strict scrutiny test: Is there is a
compelling governmental interest that is narrowly tailored to meet the
government’s objective. Recruiting and our national security are
compelling and, in addition, how else is the military going to recruit
JAG officers?
It is shocking the case even got to the Supreme
Court. As I have argued in the past, if the court rules in favor
of FAIR, what is to stop an institution from simply saying they don’t
want to comply with Title IX, or other federal law that compels
compliance through federal funding, because it violates its freedom of
speech? The likely effect of a ruling in favor of FAIR, would be
that many institutions, not just law schools, would prohibit the
military from recruiting on campus. It would not just be
restrictions on equal access to campuses, but access altogether.
There is a good Federalist Society panel discussion on the case that took place today.
