The latest example of judicial overreaching on social issues comes from the United States Court of Appeals for the Third Circuit, where a panel ruled on Monday in FAIR v. Rumsfeld (link opens 100+ page PDF file) that the Solomon Amendment violated the First Amendment freedoms of speech and association of university law schools. The Mad Hibernian noted the decision here; I first blogged about the Solomon Amendment here, on the second day of this blog's existence.

For those of you who are unfamiliar with the issue, the Solomon Amendment provides that universities may not continue to receive federal funding if they refuse to allow military recruiters on campus. Many colleges and, in particular, law schools banned military recruiters during the Vietnam War as an anti-war protest, although the bans that remain in effect today are mainly predicated, at least ostensibly, on a protest against the military's "don't-ask-don't-tell" policy towards gay servicemen and women. A group of law schools sued, saying that their freedom of speech and association was violated by making them, as a condition of receiving federal funding, accept recruiters on their campuses.

There is, of course, no constitutional right to federal funding, so the case turns on the doctrine of "unconstitutional conditions," by which the government may not impose an undue burden on the exercise of a fundamental right as a condition of receiving a benefit. In other words, the court had to balance the degree of imposition on the law schools' rights of speech and association with the strength of the government interest involved.

This is where the court's opinion is problematic.

As an initial matter, a Powerline reader noted that the court appears to have stacked the deck by improperly placing the burden on the government to justify the statute, rather than on the plaintiffs to show the burden. But the court appears to have gone further than that.

On the side of weighing the law schools' interests in disassociating themselves from the military recruiters' nefarious "message," in what has to be taken as a too-cute attempt to hoist cultural conservatives by their own petard rather than offer a straightforward analysis of precedent, the Third Circuit relied heavily on the US Supreme Court's decision in Boy Scouts v. Dale, which used the "unconstitutional conditions" reasoning to rule that the Boy Scouts could not be pressured into accepting a gay scoutmaster. The court makes clear that it was thumbing its nose at the Dale decision when it emphasized that the Supreme Court had held that the reason why "a gay scoutmaster would undermine the Boy Scouts' message was because the Boy Scouts said it would." Slip op. at 30 (emphasis in original). Thus, the Third Circuit effectively held that it was compelled to accept the law schools' objection as an unrebuttable presumption.

Of course, this is a radically different approach from that taken by the Supreme Court in an earlier case that generated much controversy: Bob Jones University v. United States, 461 U.S. 574 (1983), in which the Supreme Court - to the cheers of nearly all the same people who back the FAIR lawsuit - found it appropriate for the IRS to deny a tax exemption (like federal funding, a benefit, not a right) to a university whose policies were, like the denial of access to military recruiters, against public policy. In fact, those policies - refusal to admit students involved in interracial relationships - were, while repugnant, far more directly entangled with the university's core mission (i.e., its admissions policies) than the minimal intrusion of an annual visit from a recruiter. The freedom of speech and association claims in Bob Jones were also stronger because they were based upon sincerely held religious beliefs and thus impacted yet another fundamental right.

The Third Circuit's opinion also seems unduly dismissive of the strength of the government's interest in recruiting lawyers to serve in the military - and certainly does not defer to the military's choice of means for doing so - despite its rote incantation that "[w]e presume that the Government has a compelling interest in attracting talented military lawyers." Slip op. at 32. It was, after all, only a little over a year ago that the Supreme Court found, in Grutter v. Bollinger, that the State of Michigan had a compelling state interest in having an elite law school, sufficient to justify racial preferences in admissions. And that's just training lawyers, not hiring them. Consider the Court's reliance in that case on the brief filed by the military, which it held up at the time as a model of inclusive hiring and one dependent on institutions of higher education to train its best and brightest:

[H]igh-ranking retired officers and civilian leaders of the United States military assert that, "[b]ased on [their] decades of experience," a "highly qualified, racially diverse officer corps ... is essential to the military's ability to fulfill its principle mission to provide national security." The primary sources for the Nation's officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. At present, "the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies." To fulfill its mission, the military "must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting." We agree that "[i]t requires only a small step from this analysis to conclude that our country's other most selective institutions must remain both diverse and selective."

(Emphasis added; citations omitted). In short, the Supreme Court has recognized the significant need for the military to recruit from institutions of higher education. To defer blindly to the law schools' need to disassociate themselves from the occasional recruiting visit, while giving little weight to the interference with the military's recruiting objectives caused by a complete ban from campus is unreasonable and unrealistic. I have a hard time seeing the Supreme Court let this stand. Unfortunately, though, the broader issue of coming to consistent treatment of the interests of military and educational institutions is unlikely to be settled soon.