Baseball Crank
Covering the Front and Back Pages of the Newspaper
December 1, 2004
LAW: It Depends Whose Ox Is Getting Gored

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.

Posted by Baseball Crank at 9:15 AM | Law 2002-04 | Comments (7) | TrackBack (0)
Comments

I have no sympathy for law schools and colleges that take this position-but what they're doing is, or should be, well within their rights. I think conservatives, more than anyone else, need to recognize that the acceptance of federal funding must not turn any institution into a mere arm of the federal government. What ever happened to the classical liberal belief in free institutions, a belief conservatives argue they inherited from those classical liberals? The government has no more business telling universities who may recruit on their campuses that it does telling the Boy Scouts they must allow gay Scoutmasters.

Posted by: John Salmon at December 2, 2004 1:25 PM

A fair enough point, although I'm less impressed with that argument when it comes to the issue of whether to even allow the government to have its say on the campus. I just don't buy that the intrusion of a recruiter once or twice a year is that big a part of an institution's self-definition.

Posted by: The Crank at December 2, 2004 1:47 PM

The Third Circuit "deferred blindly to the law schools," as you put it, because it read Dale as requiring it to do so. I don't understand why relying heavily on Dale doesn't constitute the "straightforward analysis of precedent" that you seek. Dale is good law, right? It's binding, it's directly on point, and it's much more recent than Bob Jones, so why shouldn't the Third Circuit follow it closely?
Here, as the court notes, the gov't's means must be narrowly tailored to its end (p.32-33). The court found that the Solomon Amendment wasn't narrowly tailored.
I think you're correct that the heart of that analysis is examining the degree to which requiring occasional recruitment visits infringes on the institution's self-definition, but the Third Circuit read Dale to require, in conducting that examination, near-total deference to the institution's own view of whether/how something infringes. Orin Kerr at the Conspiracy has an interesting takeon this - that Dale deference on this point is only partial, not complete - but the Third Circuit makes it sound as though Dale, as well as Meyer v. Grant (fn. 12) requires more than that, more like near-total deference.
The Solomon Amendment still might be narrowly tailored if the military had no other way to recruit lawyers, but, as the court notes, p.33-34, it does.
So, I don't think it's enough to carp that the Third Circuit didn't straightforwardly analyze precedent, or that Grutter implies that military recruitment is highly important. You need to either show that the Third Circuit misread Dale, or else that on-campus recruitment is critical for the military to meet its goals. That, or call for Dale to be overturned.

Posted by: The Navigator at December 2, 2004 3:21 PM

First of all, the problem isn't deference to the law schools' conclusion about what ideas they don't want to associate with; the problem is with total deference to the notion that even allowing recruiters on campus is a serious enough infringement to warrant voiding an Act of Congress. It's just not the same as your choice of employees, members, students, etc.

The precedents just aren't as ironclad as you suggest. While Dale and Grutter both showed high levels of deference, the VMI case - as the dissenters in Grutter bitterly noted - showcased a very low level of deference to VMI's conclusion that it would be an intolerable burden to make the many changes it would have to accept to admit women.

Posted by: The Crank at December 2, 2004 4:04 PM

"the problem is with total deference to the notion that even allowing recruiters on campus is a serious enough infringement to warrant voiding an Act of Congress."
I understand that - but that level of deference, to an institution's own view of what gov't requirements would infringe on its expressive right, is what the Third Circuit thought Dale required. And Dale is both more closely on point and more recent than VMI, IIRC.
It wasn't quite total deference, but it was pretty high, and frankly I don't think you can blame the majority for being unconcerned with balancing that deference with an effort to avoid overturning Acts of Congress - is that the example set by the Rehnquist Court? Hardly - the Supremes overturn laws whenever they feel like it.
The real lesson here, I think, is that Dale was wrongly decided on this point, and should be overturned - institutions shouldn't be given near-total deference to decide for themselves which gov't obligations would infringe on their freedom of expression. (Dale was a nakedly political effort to support the Boy Scouts and their homophobic leadership, and if FAIR causes the Supremes some embarrassment, it will be well and truly deserved.)
Even having said that, I still don't think the gov't would win here automatically. The majority points out that the gov't didn't bother offering a shred of evidence to support its contentions about the importance of on-campus recruiting. Presumably they could do so, and will do so once past the injunction stage, but even there I hope there isn't the sort of blanket deference to claims of "military need" that the courts usually display.
If your baseline argument is that courts of all stripes yank deference up and down at will in order to reach desired results, I guess I can't argue. They do the same with levels of specificity of asserted constitutional rights, of course.

Posted by: The Navigator at December 2, 2004 5:26 PM

I know that, as a lawyer, Iím supposed to analyze this more deeply, but why should any school have an inalienable right to federal funding?

My issue is the effect such bans have on studentsí career opportunities. My former law school clearly stated its desire to ban military recruiters, but for the Solomon Amendment. Without it, I would never have had had a chance to interview with JAG recruiters and the potential for a rewarding career (a path I ended up not going down). The close-mindedness and ingratitude of these schools are denying very real opportunities to their students.

These schools have every right to ban whoever they choose, but no right to expect unconditional federal funding in return.

Posted by: The Mad Hibernian at December 2, 2004 11:54 PM

These schools have every right to ban whoever they choose, but no right to expect unconditional federal funding in return.

This is the key point. The government can spend its money how it wants (unless by doing so it's respecting an establishment of a religion), and the school is free to reject that money and the conditions that come with it. Simply put, no school's freedom, or the freedom of any school's factulty, is being infringed here. Therefore, there is no case.

Posted by: Jason Steffens at December 4, 2004 8:49 PM
Site Meter 250wde_2004WeblogAwards_BestSports.jpg