While the big case that will be having oral arguments in front of the Supreme Court this week is Ayotte—which I will have more about later this week–another interesting upcoming case is Rumsfeld v. FAIR, which concerns the constitutionality of the Solomon Amendment. The Amendment denies funding to a university that “either prohibits, or in effect prevents’ military recruiters access to students equal in quality and scope to that provided to other recruiters,” which the 3CA issued an injunction against enforcing. The question is a difficult one, which hasn’t gotten a lot of attention on liberal law blogs yet. Fortunately, Fantasy Life has a very detailed treatment of the background to the case. It’s a close and difficult case, but like her I am reluctantly inclined to think that the Amendment–while very bad policy–does not violate the First Amendment. The state’s leeway under its spending powers are much greater than if it’s enacting direct prohibitions. I certainly agree with the made by several conservatives that any exclusion from federal law based on “expressive association” has to apply to Bob Jones University just as much as it applies to the Harvard Law School. If the Solomon Amendment cannot be applied to universities, then could schools that lose funding under Title IX sue to be exempt from that too? It’s hard to come up with a principled reason why not. Making the Solomon Amendment non-applicable could have wide-ranging effects on civil rights law, and I think that the government can use its spending power to promote these kinds of purposes.
However, there’s another question of interest: assuming that the Amendment is constitutional, do the policies of most law schools violate it? The amicus brief filed by the Harvard Law School faculty argues that the policy does not. The question turns on whether the military is being denied access “on equal terms.” A policy that banned military recruiting per se would obviously violate the amendment. But Harvard’s policy doesn’t; it has neutral rules requiring businesses that want special access to on-campus recruiting to be non-discriminatory, and the military does not adhere to these rules. If it wants access to campus, it has the option of stopping its discrimination against gay people. As it stands, the military wants a special exemption to rules that apply to other recruiters. The brief argues, quite persuasively, that the language of the statute does not require such special privileges:
In short, the government has chosen to enforce the Solomon Amendment as if it conferred upon the military a unique privilege–one shared by no other employer, including other agencies of the Federal Government–to disregard neutral and generally applicable rules designed to govern the conduct of all recruiters. There is, however, a better way to read the statute–one that could resolve this case without requiring this Court to venture into the constitutional tangle presented in the parties’ briefs. Consistent with the statute’s text, its history, and the government’s own rhetoric, the Court should hold that the statute confers no such unprecedented trump. Rather, like all of its legislative predecessors, the Solomon Amendment applies only to policies that single out military recruiters for special disfavored treatment, not evenhanded policies that incidentally affect the military. Because there is nothing in the statutory text that would support a special rule for anti-discrimination policies, the only alternative would be to hold that the Solomon Amendment confers upon military employers the extraordinary right to claim immunity from any policy–no matter how evenhanded–that they deem burdensome to their recruiting efforts.
If the government’s enforcement policies with respect to the Solomon Amendment reflected an accurate view of the meaning of “in effect prevents,” then the school’s requirement would presumably be one that “in effect prevented [the] student . . . from enrolling in a[n ROTC] unit . . . at another institution.” And if that were true, institutions of higher learning could presumably be required to modify scores of neutral and generally applicable policies to ensure that their students’ ability to participate in ROTC was not impaired. Like the Solomon Amendment, then, the ROTC provision is most sensibly read to rule out only policies that target ROTC programs and participants for special negative treatment.
This interpretation of the statute seems reasonable to me. I would be tentatively inclined to defer the complex constitutional issues, and simply rule that policies that do not explicitly single out the military for differential treatment do not violate the Solomon Amendment.