Rumsfeld v. FAIR

December 7, 2005 5:16 PM

The Supreme Court heard arguments yesterday in Rumsfeld v. FAIR, a case challenging the Solomon Amendment, a US federal law that allows the government to cut federal funding to universities that refuse to allow military recruiting on campus. FAIR is a coalition of law schools challenging this law on the basis that the US military's policy of prohibiting open homosexuals from serving violates the schools' anti-discrimination policies (see section 6-3). Summing the issue up nicely, the dean of one law school said of the US military, "If it were a private employer who discriminated on the basis of sexual orientation, race or gender, we wouldn't allow them here on campus." .rm C-SPAN coverage here.
posted by thirteenkiller (56 comments total)

Good.

F-ing recruiters.
posted by Balisong at 5:19 PM on December 7, 2005

But it is not a private employer looking to hire; it is an entity that gives money to the school in large amounts and under various ways. (not that I favor the govt on campus ).
posted by Postroad at 5:26 PM on December 7, 2005

The FAIR lawyers got killed in those oral arguments. All the people who cover SCOTUS acknowledge it. Even NPR had to admit it. If the universities don't want to let the recruiters on campus, the solution is simple: stop taking money from the federal government. The only question on this case is whether the ruling will be 8-1 or 9-0.

There are so many ways the FAIR arguments were wrong, but perhaps the one that hurt them most was that they couldn't answer the question of why their arguments wouldn't have worked equally well during the second world war, when the military had racial discrimination. The conservative justices didn't even need to say anything: the liberal justices tore a new asshole for the FAIR lawyers.
posted by peeping_Thomist at 5:28 PM on December 7, 2005

Here and here are NPR stories on the arguments.
posted by thirteenkiller at 5:40 PM on December 7, 2005

The problem isn't just that the money's being taken away from one school within a university. I go to NYU, one of the more prominent universities that's joined FAIR.

NYU refused to let recruiters in the NYU School of Law. So they cut the funding to the NYU School of Law. Fair enough. NYU was prepared to ride with that, and did for a number of years.

Now, due to the 2002 change, the issue is that because of recruiters' being barred from the NYU School of Law, none of NYU's schools (grad schools, various undergrad colleges) will receive federal funding.
posted by booksandlibretti at 5:54 PM on December 7, 2005

How many of these cases are decided in oral argument though? I've had a bad feeling about this case since it was certified, and it's hard for me to believe that we're going to win this case with this court, but FAIR has a pretty compelling argument I think.

It's too bad this is an issue at all. The Village People called that song "In The Navy" for a reason.
posted by prettyboyfloyd at 5:55 PM on December 7, 2005

But the Military's policy violates the Constitution too--equal protection.
posted by amberglow at 5:55 PM on December 7, 2005

Yes, but Support Our Troops. Whoops! There goes my all-American patriotic knee! Curses! And I'm not even American.
posted by Decani at 5:56 PM on December 7, 2005

Now, due to the 2002 change, the issue is that because of recruiters' being barred from the NYU School of Law, none of NYU's schools (grad schools, various undergrad colleges) will receive federal funding.

Legally speaking, why would it be otherwise? NYU is one legal entity. If NYU isn't cooperating with regards to the School of Law, it's NYU that's refusing, not the law department. So why wouldn't the feds stop federal funding to NYU?
posted by unreason at 5:57 PM on December 7, 2005

Are law schools hurting for money?

What would stop NYU School of Law from divesting itself from the remainder of the state structure, become private, and giving up federal funding?

If enough schools privatize in this way, perhaps that would hurt recruitment (of smart people) enough to impact upon the long-term quality of the military, so that "brass" see the literal consequences of their bigoted policies?
posted by Rothko at 6:03 PM on December 7, 2005

Rothko: I'm pretty sure NYU already *is* private. Coming from Brown, federal funding is always an issue. We're talking research grants here, not the same funding state universities receive.
posted by awesomebrad at 6:05 PM on December 7, 2005

What would stop NYU School of Law from divesting itself from the remainder of the state structure, become private, and giving up federal funding?

Isn't NYU already a private school?
posted by gyc at 6:06 PM on December 7, 2005

Ah, I guess I wouldn't have thought law schools did the kind of (basic) research that pulls in those kinds of federal grants.
posted by Rothko at 6:07 PM on December 7, 2005

booksandlibretti has it right. They're using a pretty heavy stick to get their recruiters on campus. The Harvard Law School barred JAG recruiters from using the Career Services* this Spring after FAIR's successful Third Circuit case (Harvard is in a different Circuit), but had to capitulate this year because the government would have canceled funding for the entire Harvard system (medical research grants, physics, public health, everything). Obviously, the university simply wouldn't allow that to happen, so the Law School lost the argument.

*Student groups invited them to campus, so they were still able to recruit here without violating the school policy.

On preview: many universities don't have the anti-discrimination policies at issue, but it was a requirement for memebership in some law school consortium. Also, "divestment" might preclude the law school from using the University's name. NYU Law might have to change its name if it seceded.
posted by dilettanti at 6:10 PM on December 7, 2005

How many of these cases are decided in oral argument though? I've had a bad feeling about this case since it was certified, and it's hard for me to believe that we're going to win this case with this court, but FAIR has a pretty compelling argument I think.

They may have a compelling argument, but there are all sorts of problems with deciding for FAIR. For example, what happens to all the similarly structured civil rights legislation? Any one of those bills has a much larger free speech impact on a college than the Solomon Amendment does, and yet most people agree that isn't a problem. Rosencrantz wasn't able to give a good answer.

The best argument I've heard -- and the one that Rosencrantz advanced, IIRC -- is that with the civil rights legislation Congress has a Constitutional interest in protecting people from discrimination. The Justices immediately came back with the point that Congress also has a Constitutional interest in raising an army and that America is at war right now.

And it's very debatable how much of a free speech impact this has on a college. All sorts of remedies exist, with Justice Breyer saying the solution was more speech, not less. For example, they could add a disclaimer that says, "[Institution] does not endorse employers' policies." The colleges can organize rallies and speeches outside the place of recruitment. They can hand out fliers to every person who enters the door. The government even says that protesters can heckle any person who approaches the booth (much to the surprise of the Court).

For hundreds of millions of dollars, Congress is asking for little. And the college does not have to provide any more assistance than they do for any other employer. That's why FAIR will lose this case.

What would stop NYU School of Law from divesting itself from the remainder of the state structure, become private, and giving up federal funding?

Because of cases involving similar civil rights legislation, this is a very hard thing to do. Not only does your institution have to stop accepting federal funds, but no student can receive federal assistance, whether they requested it in conjunction with the school or not.

There are entirely too many pitfalls to overturning the Solomon Amendment.
posted by sbutler at 6:14 PM on December 7, 2005

There are entirely too many pitfalls to overturning the Solomon Amendment.

This may be true, but it just highlights the sad state of affairs in America.
posted by mek at 6:20 PM on December 7, 2005

How many of these cases are decided in oral argument though?

Almost none. The sharp line of questioning at the oral argument merely tips the Justices' hands as to their reaction to the briefs of the parties and amici.
posted by Saucy Intruder at 6:24 PM on December 7, 2005

Listening to the arguments, one thing popped up.

The law requires equal access as would any other employer wishing to recruit. If the law school could honestly say that no recruitment is permitted by any employer practicing discrimination, there would be a case that not letting the military recruit still follows the equal access rules. The rule itself would be that the litmus test for discrimination must be held to precisely.

This requires clear proof that all recruiting employers have had to pass this test first, which is unlikely to be easy. I know that the local university doesn't have such a clear-cut rule, even though they claim openly to be against all discriminatory practices. Hell, I can think of more than one employer that recruits here that is known to be mildly discriminatory.

note: I don't know if this university is represented in this suit through FAIR or not.
posted by mystyk at 6:32 PM on December 7, 2005

FAIR will lose this one, for the reasons stated above.

The next chapter will be to take "Don't Ask, Don't Tell" itself to the SCOTUS, which will be the bigger issue, and which will also likely fail.
posted by darkstar at 6:33 PM on December 7, 2005

Mystyk, I don't think it matters so much if individual recruiters have personal anti-gay sentiments; what is important is if the company has a written policy of not hiring gays.
posted by thirteenkiller at 6:36 PM on December 7, 2005

People's real ire should be directed at the legislative branches and Clinton (and many others) who passed the laws that the military is required to follow.
posted by Falconetti at 6:41 PM on December 7, 2005

Blame Clinton! (At All Costs!)
posted by Rothko at 6:49 PM on December 7, 2005

Damn you, Clinton!
posted by Balisong at 6:50 PM on December 7, 2005

I've had a bad feeling about this case since it was certified, and it's hard for me to believe that we're going to win this case with this court, but FAIR has a pretty compelling argument I think.

Weren't they arguing it on a First Amendment basis; claiming that it interfered with their free speech rights? That doesn't strike me as compelling. There's no restraint of speech: the schools have to allow recruiters on campus, but they can say absolutely anything that they want about them. Hell, they could hang a big banner that says "STAY AWAY FROM THESE ARMY BIGOTS" over the recruiters' table at the job fair.

Now, if the law withheld federal funding from schools whose professors criticized the administration, that would be something else altogether.

But the Military's policy violates the Constitution too--equal protection.

It's my understanding that this particular argument has never been tested. It certainly wasn't any part of FAIR's case. I'm actually kind of trepidatious to hear what the court would have to say on this. It would be a shitstorm either way, I think, and they would work their damnedest to avoid it.
posted by mr_roboto at 6:54 PM on December 7, 2005

Mystyk, where do you get the impression that the law requires equal access? As I read the text of the Solomon Amendment, there is no such provision; it simply prohibits disbursement if the school does not allow on-campus military recruiting.

To continue the echo, the law is clearly constituitonal. Fault lies not with the Supreme Court, but Congress and Clinton, for passing the law in the first place.
posted by huzzahhuzzah at 7:06 PM on December 7, 2005

Isn't NYU already a private school?
Yes.
posted by Opposite George at 7:07 PM on December 7, 2005

Blame Clinton! (At All Costs!)

Please. If anyone means to imply I am some sort of Clinton-hater, they are wrong. I am a big fan of Clinton, but he isn't perfect.

My point was that the military is required by law to follow their asinine discriminatory policies against gays. Attack at the root.
posted by Falconetti at 7:07 PM on December 7, 2005

As for the Equal Protection analysis, homosexuality is not doctrinally a real suspect class like race, so the regulation wouldn't be subject to strict scrutiny or even the sort of intermediate standard used in gender classifications (although post-VMI that standard is tougher. I don't know if the "correct" standard is clear or not, but it probably would be a low threshold, like rational basis review.
posted by Falconetti at 7:10 PM on December 7, 2005

Yeah, the case seemed like it would have been a lot stronger if they had tried to argue it purely on the 14th Ammendment gay rights issue. They still would have lost, but it would have been better PR than Rosencrantz sounding like an equivocating weenie as he got his ass handed to him.
posted by klangklangston at 7:12 PM on December 7, 2005

thirteenkiller, you misunderstood. I never commented, even remotely, about the individual recruiters, but rather the employers they are recruiting for.

If the law school said that ALL employers wishing to recruit had to prove (within reasonable measures) that they do no discriminate before they'll be allowed to send any recruiters on the law school's campus, then the school would have a case. The case is that the solomon act requires equal access as would any other employer. If they block other employers that don't pass the test, they would be able to block the military too.
posted by mystyk at 7:21 PM on December 7, 2005

Can't someone think of the gay lawyers!
posted by parallax7d at 7:22 PM on December 7, 2005

Clarification: "They would be able to block the military too" should be read as "They would have a valid case for blocking the military too." It would show the solomon act as significantly further of a "special status" law than the government wants you to think.
posted by mystyk at 7:24 PM on December 7, 2005

My point was that the military is required by law to follow their asinine discriminatory policies against gays. Attack at the root.
posted by Falconetti at 7:07 PM PST on December 7 [!]

Bill Clinton is long out of power. How about we blame the people currently punching holes in the collective boat, yeah?
posted by Rothko at 7:26 PM on December 7, 2005

Also, I wonder what would happen if the schools banded together, and all refused to comply? Kinda like a worker strike. I guess it's hard to get all worked up about something so concluded anyway.
posted by parallax7d at 7:26 PM on December 7, 2005

*concluded = convoluted
posted by parallax7d at 7:27 PM on December 7, 2005

Viz the rational basis review, I think DADT should likely pass such a review. It clearly has a rational basis, whatever one thinks of the premises it is based upon (which appear, in growing evidence, to be flawed).
posted by darkstar at 7:28 PM on December 7, 2005

mystyk: I'm saying that all they have to do to prove this, at least to the University of Iowa's apparent satisfaction, is to not have an official policy of discrimination.

huzzahhuzzah: As far as I remember, a guy speaking for the government said in the Supreme Court argument that all the military recruiters wanted was equal treatment. I didn't read all the way through the actual bill, though, so maybe he was being too humble.
posted by thirteenkiller at 7:29 PM on December 7, 2005

They may have a compelling argument, but there are all sorts of problems with deciding for FAIR. For example, what happens to all the similarly structured civil rights legislation? Any one of those bills has a much larger free speech impact on a college than the Solomon Amendment does, and yet most people agree that isn't a problem. Rosencrantz wasn't able to give a good answer.

That's why I always tell people: You've got a legal question? You go to Guildenstern.
posted by papakwanz at 7:38 PM on December 7, 2005

Rothko, are you attacking Clinton for military discrimination?

"In 1992, presidential candidate Bill Clinton declared his opposition to the military's exclusion of lesbian, gay and bisexual soldiers." (Emphasis mine)

The simple stat is that Clinton made it EASIER for gays in the military, not harder. Before DADT*, you could still be separated, but you could also end up in a courts martial. And the policy allowing that is MUCH older than anything Clinton's done. Read the link supplied. Or wikipedia. Or any other credible source. They all agree on the above.

disclaimer: I am a military officer, and have had to give briefings on DADT* on more than one occasion. I've researched this topic more than I've ever wanted to.

* "Don't ask, don't tell". The full version is "Don't ask, don't tell, don't harass, don't pursue".
posted by mystyk at 7:41 PM on December 7, 2005

mystyk, that was me, not Rothko. Rothko was protesting my coraling of Clinton into the blamr-o-sphere. I guess I was wrong. I've always associated him with "don't ask, don't tell" in a cop-out way, like he didn't flex political muscle enough to end military discrimination and settled for this weak compromise.
posted by Falconetti at 7:45 PM on December 7, 2005

"blame-o-sphere" (which frankly is awkward anyway)
posted by Falconetti at 7:46 PM on December 7, 2005

You could both be right - DADT is bigoted, and it's an improvement from the policy it replaced.
posted by thirteenkiller at 7:49 PM on December 7, 2005

Falconetti: Oops. Guess I read it wrong. Sorry Alex/Rothko.

thirteenkiller: Definately. DADT is clearly not perfect, as it claims to protect a lot more than it actually does. That said, it is a clear step in the right direction from the even further hard-line policies it replaced. The next step should be for DADT to be enforced properly.
posted by mystyk at 8:01 PM on December 7, 2005

Yeah, the case seemed like it would have been a lot stronger if they had tried to argue it purely on the 14th Ammendment gay rights issue. They still would have lost, but it would have been better PR than Rosencrantz sounding like an equivocating weenie as he got his ass handed to him.

The thing is, the first amendment ground is the basis on which it was decided by the Third Circuit, and the Supreme Court only grants cert to answer very specific, narrow questions, in this case "whether the court of appeals erred in holding that the Solomon Amendment's equal access condition on federal funding likely violates the First Amendment to the Constitution." (from the docket.)

It helps here if you're familiar with some gay-rights precedents, specifically Dale v. Boy Scouts, which used the same basis to uphold the BSA's decision to exclude homosexuals. Of course I'm note sure about the 3rd circuit's reasoning, but it sure seems like they were pulling some legal kung-fu, striking down an anti-gay discriminatory law on the same basis which had earlier been used to uphold discrimination. Or maybe I have an overly developed sense of irony.

Anyway, the point is, the 14th amendment wasn't up for debate before SCOTUS. If FAIR wants to argue that, they have to sue again and start all over.
posted by rkent at 8:07 PM on December 7, 2005

Goldwater: "A goverment that is big enough to give you all you want is big enough to take it all away".

Once again conservatives demonstrate that their idea of Big Government is really really bad.

Funny thing, the only reason I'm not a pure libertarian is that I know these same conservative asshats will be running the world via private monopolization of wealth in short order.
posted by Heywood Mogroot at 8:58 PM on December 7, 2005

On the matter of Pure libertarianism:

Just because you're a libertarian doesn't mean you have to be any more radical than mainstream democrats and republicans.

Support (most) of the Democratic social agenda and the (traditional) Republican economic agenda, and you're set. You don't have to be a radical minarchist to be a libertarian.

Now, of course, I'd recommend a double helping of anti-coruption in the platform, but that's just my preference.
posted by Richard Daly at 10:36 PM on December 7, 2005

Hey, why shouldn't your mom's boyfriend get to fuck you in the ass? He pays the rent does't he? Are you saying you would rather be homeless? Fine then; freeze.
posted by squirrel at 10:58 PM on December 7, 2005

The simple stat is that Clinton made it EASIER for gays in the military, not harder. Before DADT*, you could still be separated, but you could also end up in a courts martial. And the policy allowing that is MUCH older than anything Clinton's done. Read the link supplied. Or wikipedia. Or any other credible source. They all agree on the above.

but witchhunts and investigations have increased since DADT tho, no?
posted by amberglow at 11:25 PM on December 7, 2005

You don't have to be a radical minarchist to be a libertarian.

While I agree with the social-democratic/economic-republican formulation, libertarianism IMV is not compatible with 20th-century social welfare policy. That's too much concentration of state power over the individual for pure libertarianism.

I believe we need some countervailing social force/mechanism to mitigate intergenerational wealth concentration, and I see nothing in pure libertarianism to provide this. I would like to believe Georgism (aggressive taxation of land value) would be sufficient for this mitigation, but if not democratic socialism is the next best thing.

hmm, to the extent Georgism is compatible with libertarianism (cf. the geolibertarians) I guess pure libertarianism need not be minarchist tho.
posted by Heywood Mogroot at 12:10 AM on December 8, 2005

Gosh, all this polite legal sparring. The last time around when students tried to run ROTC off campus the National Guard shot four of them dead. The next day colleges around the country were occupied by tanks. Those were the days.
posted by JackFlash at 12:32 AM on December 8, 2005

So, the "liberal" law schools and their students wish to leave the Advocate General's office to only conservatives? That the military personnell will only receive representation from more conservative law schools? The long term affects of these fine bastions of education deciding to opt out is that the military will become MORE conservative not less.

Nobody said that it would be easy to live by your principles, as an individual or as a group, but those schools and their students can bite the bullet and not take the money. And that includes all those nice science grants to kill people and that financial aid to buy beer.

Remember this, the military necessarily needs to be a reflection of the greater society and I will grant you that it is not that, but it sure does not help that certain segments of the intelligentsia, meritocracy (what ever you want to call it) want nothing to do with the people who have the tanks.
posted by jadepearl at 3:30 AM on December 8, 2005

So this is the same Supreme Court that said the Boy Scouts are allowed to hold meetings at Federally-funded public schools while being allowed to exclude gays as a private organization, right?
posted by XQUZYPHYR at 4:20 AM on December 8, 2005

The Harvard Law School ... had to capitulate this year because the government would have canceled funding for the entire Harvard system (medical research grants, physics, public health, everything). - dilettanti

The governement really would have followed through on cutting all funding to Harvard? Ouch. They're pretty friggin dead set on recruiting to their bigoted instiution, eh?
posted by raedyn at 8:14 AM on December 8, 2005

Can't the schools just set up Free Speech Recruiting Zones, say, 5 miles or so from the main campus, in the back of a rarely used parking lot?
posted by bashos_frog at 9:43 AM on December 8, 2005

but it sure does not help that certain segments of the intelligentsia, meritocracy (what ever you want to call it) want nothing to do with the people who have the tanks.

don't be a fucking wanker here, please. We have enough already. kthx.
posted by Heywood Mogroot at 10:39 AM on December 8, 2005

Heywood, want to clarify instead of adding to the usual static? Is this just you a trolling for a "wank" yourself?
posted by jadepearl at 1:56 AM on December 9, 2005