Early Thoughts on Rumsfeld v. FAIR (Commentary)
Very preliminary reactions:
Notably, in today’s unanimous decision the Court does not rely on the Spending Clause, but instead holds that the government could directly impose on schools the requirement of military access. Indeed, the Court first rejects the amici’s statutory argument that the Solomon Amendment merely requires access to the military on the same conditions as those imposed on other employers. The implication is that schools must afford DoD exemptions from any recruiting rules that have the effect of giving the military less access to students than some other employer. Thus, the holding is that the government may require schools (including private schools) to give preferential access to military recruiters, without any First Amendment concerns.
The Court distinguishes the Boy Scouts v. Dale decision on the ground that the required inclusion there affected the group’s membership, rather than its invited visitors. That, of course, doesn’t distinguish Hurley (or Runyon, or Grove City, or AP v. NLRB, or . . . ). As for Hurley (and Tornillo and PG&E), the Court holds that requiring access to other parties’ speech is only constitutionally problematic where that access has a palpable effect on one’s own speech (such as by alterning the message conveyed in a parade (Hurley), or by monopolizing scarce space in a newspaper that could have been used for the plaintiff’s own speech (Tornillo)). The least persuasive part of today’s opinion, I think, is the Chief’s attempt to distinguish PG&E. Here’s what he writes:
The same is true in Pacific Gas. There, the utility company regularly included its newsletter, which we concluded was protected speech, in its billing envelope. 475 U. S., at 8-9. Thus, when the state agency ordered the utility to send a third-party newsletter four times a year, it interfered with the utility’s ability to communicate its own message in its newsletter. A plurality of the Court likened this to the situation in Tornillo and held that the forced inclusion of the other newsletter interfered with the utility’s own message. 475 U. S., at 16-18. In this case, accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer’s choice of parade contingents, a law school’s decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter’s message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.
In other words, Chief Justice Roberts is holding that there is a threshhold test — “Is the plaintiffs’ conduct ‘inherently expressive’?” — that triggers Tornillo-like scrutiny. So, for instance, if PG&E had not had a practice of including its own newsletter in the billing envelopes — if the state there had required that it provide the third-party newsletter alongside its plain ol’, unadorned “not inherently expressive” electric bills — there would have been no First Amendment problem. This is a fairly significant revisionist reading of PG&E, in which the plurality’s decision turned on the fact that including the required inserts would prompt the electric company to engage in unwanted counterspeech. 475 U.S. at 15-16. (UPDATE: On the other hand, the PG&E plurality also focused on the fact that the compelled access in cases such as Tornillo and PG&E was triggered by the complaining party’s own speech. That’s obviously not the case in FAIR — the preferential military access requirement is not triggered by any speech of the schools’ own, and thus is not a “penalty” for having spoken. That would have been a cleaner ground on which the Court could have distinguished cases such as PG&E and Hurley — and it will be interesting to see whether the Chief’’s opinion is so construed in future cases.)
Today’s decision is much more in keeping with PruneYard (which it favorably cites) than with PG&E and Dale. Together with Johans, it shows that the Court is cutting back on some of the excesses of its compelled-speech doctrine. Those of us who think that PruneYard was rightly decided will not think this is necessarily a bad thing. We might only wish that the Court would now reconsider whether Abood, Keller and Dale can be meaningfully distiguished from PruneYard, Johans, Runyon, AP v. NLRB, and now FAIR.
This is probably way too simplistic, but the reality is that under the power to raise armies the government has the power to make me join the army against my will (and, there are rules in the army restricting what would otherwise be my First Amendment rights)–certainly, then, it should have the right to make the far lesser imposition on universities to allow access to students. Lest we forget–national defense is truly a common obligation.
Comment by federalist — March 6, 2006 @ 12:33 pm
I was reading the decision and something caught my eye. Far be it for me to contradict the legal giants of our time but I read something that doesn’t sit well with me.
“Under the statute, military recruiters must be given the same access as recruiters who comply with the policy.”
The court explicitly refers to the results of school policy (“it looks to the result achieved by the policy”). Any decision of the school to allow one recruiter is to allow every branch of the military as well.
The inanity of the situation leads ad nauseum to ridiculous hypotheticals: could other barred recruiters then sue the school for unequal discrimination of discriminating recruiters? The school says it will not accept any discriminating recruiters and yet they accept the military (a special exception to their own policy only for money). Their policy is unequally applied and by the result of the policy (as the court wishes to examine) the school discriminates against the private recruiter.
Again, hypothetically, imagine if the college choose to give special access only to employers/recruiters within its own organization (ex. on campus food service, administration) and every outside employer was only allowed to recruit off campus. Would the military would be allowed the same access as the school only affords to itself? Would it force the college to give up the exclusive rights of association to recruit within their organization as the boy scouts look to recruit for their organization?
Doesn’t that, looking at the results, as the court does, require the college to limit its association with itself? Hence limit membership/employees and trigger Dale, where recruiting students qualifies as membership of the University?
Where does a 10,000 pound gorilla sit? The answer is anyplace he wants.
Comment by DB — March 6, 2006 @ 12:39 pm
Federalist, I don’t think you are being too simplistic. The power to raise an army is specifically mentioned in the Chief Justice’s opinion, as a basis for reasonaing that the spending power could easily reach this result. That is, what Congress could do directly, Conress certainly can do with the spending power. You are not being simplistic in the least.
Comment by The NJ Annuitant — March 6, 2006 @ 12:50 pm
When one looks behind the curtain at how the Solomon Amendment actually operates, the government’s invocation of, and the Court’s reliance upon, the “raise and support” power, appears shaky at best. At many affected universities, military investment makes up a substantial percentage of the funds that would be cut off if the law school does not comply with DOD demands. At Boston College, my law school alma mater, approximately 80% of the funds at issue were for military research, including anti-terrorrism projects. Perhaps these government investments can be cabined under the spending clause, but it seems that the “raise and support” power must at least be implicated tangentially in such a transaction between the various military branches and the school.
In any case, though the power to raise and support armies is certainly robust, it would look quite absurd if the Department of Defense de-funded critical anti-terror research because of limitations put on JAG recruiters.
Comment by Dan — March 6, 2006 @ 2:05 pm
Marty, I have not even had time to read the full opinion yet, but it does seem to me that you are slightly off in your criticism of the opinion, as I do not necessarily agree with you when you say, “…if PG&E had not had a practice of including its own newsletter in the billing envelopes — if the state there had required that it provide the third-party newsletter alongside its plain ol’, unadorned “not inherently expressive” electric bills — there would have been no First Amendment problem.”
The key, and what I think you are missing, is that while “a law school’s decision to allow recruiters on campus is not inherently expressive,” the decision to include a newsletter (which is what they would be forced to do in your hypo), is inherently expressive. In other words, the issue would seem to be whether the decision the plaintiff is being compelled to make is “inherently expressive,” NOT whether the conduct of the plaintiff aside from the compelled activity (sending a bill in your hypo) would be inherently expressive.
Comment by JGR — March 6, 2006 @ 2:56 pm
Concur with Federalist. I think this is actually a narrow case that is not much about the First Amendment at all; it’s about Congress’s powers under Article I. At least, I hope that’s how the precedent plays out.
Comment by Anderson — March 6, 2006 @ 3:07 pm
This is clearly a first amendment case, and not just a case about Congressional power. While Congress has the power to raise an army, it cannot do so in violation of first amendment rights. For example, it could not restrict my ability to speak publicly against military recruitment, even if my speech might make it more difficult to recruit military personnel. That Congress has the power to mandate admission of military recruiters to law schools is the first step in the analysis, but not the last step. The Court also had to find that the Congressional exercise of power did not violate the first amendment.
I am gay and oppose the foolish “don’t ask/don’t tell” policy, but I do not think that the Court was wrong in this decision as a matter of constitutional law. I do think that it brings some of the previous jurisprudence on “compelled speech”, such as Dale, into some question.
Comment by Steven Thomas — March 6, 2006 @ 3:29 pm
General question:
How much criticism should the Third Circuit get on this one?
Comment by federalist — March 6, 2006 @ 4:02 pm
Dan writes, “it would look quite absurd if the Department of Defense de-funded critical anti-terror research because of limitations put on JAG recruiters.”
I don’t think you need to worry about it, Dan. It is extremely unlikely that a large enough number of schools will actually pull the plug to measurably impair the research. I very much doubt that any school at issue cannot be replaced by one that is just as good in reality, although it may lack the big name.
Comment by Kent Scheidegger — March 6, 2006 @ 4:25 pm
How much criticism should the Third Circuit get on this one?
I’ve seen exaggerated forms of this question already. As Lederman’s post suggests, the Court took a different view of what the dispositive issues were than the 3d did. That happens sometimes, & doesn’t imply that the lower judges were ideologues or morons. Not that Federalist implied any such thing of course.
(Surely someone around the web keeps a tally of unanimous reversals, broken down by circuit ….)
Comment by Anderson — March 6, 2006 @ 4:32 pm
Marty –
Why do you include Grove City in the list of decisions that the Court needed to *distinguish*? The Court relies (properly, it seems to me) on Grove City for authority for the proposition that Congress can attach conditions to federal spending, and that any First Amendment claim is undermined by the fact that Grove City could have declined the funding. (See slip op. at 9).
Comment by Stuart Buck — March 6, 2006 @ 4:46 pm
Sadly, from my perspective, Kent is 100% correct. His point highlights the coercive nature of the Solomon Amendment. That Congress vis-a-vis DOD has to engage in a bullyish game of chicken to achieve the desired results doesn’t, in my book, reflect how democracy ought to work. (Of course, this was not the question before the Court in Rumsfeld v. FAIR, but I think it’s an issue that underlies a good deal of the opposition to the statute and its enforcement on law school campuses.)
Moreover, not on a legal level, but on a normative one, one would think that Congress ought to be getting both the best research – which it should already be getting under a competitive grant process – and the best troops and JAG lawyers – which I and many others argue it does not get under Don’t Ask Don’t Tell – in order to most effectively fulfill its duties to provide for the common defense and to raise and support armies.
Comment by Dan — March 6, 2006 @ 4:54 pm
I think it’s unfair to suggest that Congress was bullying or that democracy didn’t work. Most people in America, I suspect, would fully agree with the Solomon Amendment. Second, certainly Congress has a right to prevent unelected leadership at universities accepting the largesse of the American taxpayer, while denying the people who defend the safety of the American taxpayer the right to recruit on such universities. The ivory-tower thinking that produced the exclusion policy is self-evident, and Congress is by no means required to sit back and allow the sensibilities of these self-absorbed people to hinder recruitment for the armed forces.
As I said earlier, national defense is a common obligation, and although people may have legitimate issues with the anti-homosexual position taken by the US military (which is enshrined in law, so the military really has no choice in the matter), the People, through their elected representatives have a right to demand cooperation with the raising of armies. If young men can be yanked out of their lives and pressed into service that is inherently dangerous, i.e., drafted, then why cannot universities be “drafted” in the sense that their facilities may be used by military recruiters? The First Amendment seems like a make-weight argument here. The law requires the affirmative doing of things all of the time.
The rejectionism practiced by these universities is quite remarkable. The military protects the very existence of these universities, as well as the rest of us. It seems to me that such an action is disloyal in the sense that the needs of the Nation here are subordinated to the sensitivities of the enlightened ones. Disloyalty may be a harsh assessment, but certainly, these guys aren’t being “team players” in this regard, and the team here is the United States of America.
Comment by federalist — March 6, 2006 @ 6:00 pm
In fact it is illegal to speak out against recruiting. See the Espionage Act of 1917. This law was upheld by SCOTUS.
Comment by agesilaus — March 6, 2006 @ 6:14 pm
re Federalist:
“[E]ven in the area of military affairs, deference to congressional judgments cannot be allowed to shade into an abdication of this Court’s ultimate responsibility to decide constitutional questions. As the Court has pointed out: “[T]he phrase ‘war power’ cannot be invoked as a talismanic incantation to support any exercise of congressional power which can be brought within its ambit. ‘[E]ven the war power does not remove constitutional limitations safeguarding essential liberties.’ ”
Rostker v. Goldberg, 453 U.S. 57 at 89. It’s just dicta, but it’s a point worth considering.
Comment by Alex — March 6, 2006 @ 6:35 pm
Federalist, your points are well taken, but I think the relationship between the government and institutions of higher education is more complicated than either the Solicitor General (in his brief and at oral argument) or you seem to want to admit. Universities don’t just “take the money” as Chief Justice Roberts said at oral argument: the government chooses to allot its funds to the best researchers in the best departments.
Perhaps the law schools leading the fight against the Solomon Amendment are the real “team players.” They want the military to get the best research AND the best troops and JAG lawyers. If those schools and their parent institutions decided to bar recruiters until “Don’t Ask, Don’t Tell” was repealed, forcing DOD to cut off funds for particle accelerators, anti-bioterror
and cancer research, Congress could then decide what the American people want and act accordingly. I’m guessing defense and medical research are more important to the majority of Americans than excluding gays from the military. Under Solomon, however, we won’t get to have that debate unless a group of major research universities takes the risk of losing its research funds (which, as has been discussed above, isn’t going to happen because the law is cleverly coercive by design).
Most importantly, as someone who has recently graduated from one of the law schools where the FAIR litigation began, I can assure you that this is a fight about principles of equality and fairness, not, as you (Federalist) put it, “self-absorbed” “ivory tower thinking.”
Comment by Dan — March 6, 2006 @ 6:58 pm
No matter how sincere the ladies and gentlemen of FAIR, their legal attack was singularly unsuccessful.
Unless they thought they were going to get at least a significent minority of the SCOTUS Justices to agree with them, this suit was an exercise in self-absorbtion and hubris. I am inclined to credit Dan’s point that the suit was not intended to be an example of self-absorbtion or ivory tower thinking.
The fact that not one Justice agreed with them shows rather conclusively that while sincere, they simply exercised poor legal judgment.
Somehow, this could be more damaging to their collective professional competence and reputation than to their sincerity.
The object lesson they should impart to their law students is this:
If you are going to make a highly publicized federal case out of a political issue, at least make a analytically respectable argument.
Sometimes failures teach us more than successes.
Comment by vnjagvet — March 6, 2006 @ 7:18 pm
Dan, a couple of points:
1) I think that you are being charitable when you suggest that the motives here are simply to create the best military possible. Many of these people are anti-military to the core.
2) I think that I should have said “ivory-tower attitudes” rather than thinking. I don’t mean to suggest that people who make specific arguments in favor of full integration of homosexuals into the armed forces are necessarily “ivory-tower” thinkers. Rather, there are very good arguments that the military should not care about sexual orientation–I happen to disagree, but that’s not really relevant.
What I was getting at is the arrogance of these individuals who refuse to accept the considered view of the people’s representatives on this issue. These people, instead of working within the democratic process to change the “don’t ask, don’t tell” policy, have decided to adversely impact armed forces recruiting; in other words, they are willing to impede military readiness because Congress doesn’t see things their way. That, Dan, is, in my view, reprehensible. Far from being team players–they are prima donnas. And to dress up this arrogance as concern for the military being the best that it can be is disingenuous.
Comment by federalist — March 6, 2006 @ 7:29 pm
One wonders why the court felt that it was necessary to go beyond the spending power issue, to address the power to raise armies, rather than following the usual predential consideration of considering only the issues necessary to decide to resolve the case before them.
There is already ample precedent under the spending power that could have supported the ruling and also further clarified whether that power truly is plenary or must be in support of some other Congressional power. (Surely, plenary power is closer to the truth, but cases like this muddy the issue).
It isn’t clear that the raising armies power adds a lot to the first amendment analysis, either, as the court looked to inherently v. not-inherently expressive conduct, and whether the compelled speech was retaliatory, rather than on the basis of the spending in the other cases. Was this necessary to bring some judge into a unanimous opinion, and if so, who and why? For example, was this stance necessary to bring Scalia and Thomas into the fold despite their skepticism of a plenary spending power, and if so, does that signal that they might part ways in some other spending power-compulsion case?
As it stands, FAIR v. Rumsfield now resolves, at least with dicta, issues quite unlike those involved with the spending power at the heart of the case.
For example, suppose a Quaker school like Antioch decides to reject all federal funding. Does the power to raise armies trump its First Amendment and property rights to exclude military recruiters from its campus, and if so, shouldn’t it be entitled to compensation for the taking? FAIR v. Rumsfield apparently holds that it does trump and isn’t a taking, even though by definition schools impacted by the Solomon Amendment, unlike a hypothetical Quaker school, are not consciencious objectors as a matter of policy, as they already receive military funds, and freedom of religion, another first amendment right, has historically been viewed to provide some insulation against the power to raise armies as expressed in the military draft. Does FAIR give organizations lesser rights than individuals in the face of that Congressional power?
Surely the justices can’t have been unaware that they were resolving issues well beyond the scope of the case with their reasoning, so one has to presume that there was a good [political] reason for this decision.
Comment by ohwilleke — March 6, 2006 @ 7:52 pm
ohwilleke: “For example, suppose a Quaker school like Antioch decides to reject all federal funding. Does the power to raise armies trump its First Amendment and property rights to exclude military recruiters from its campus, and if so, shouldn’t it be entitled to compensation for the taking?”
Opinion p. 5: “The statute provides an exception for an institution with ‘a longstanding policy of pacifism based on historical religious affiliation.’ ยง983(c)(2).”
It would appear that your hypothetical will remain hypothetical. Congress has no intention of doing what you suggest.
Comment by Kent Scheidegger — March 6, 2006 @ 8:20 pm
I appreciate Marty’s having brought the caselaw perspective to the assessment while we still read through the opinion.
I agree with some commenters it was a tangential lever which was applied to an act of congress, and which failed to gain purchase.
Yet, just as William Perry’s ingenious dont-dont policy was a moderate’s repartee to a social policy challenge early in a president’s first term, the reality many people realized was it was only a temporary shield.
Military sociology is going to be a topic developed in all its oxymoron-like contrast over the next decades, especially if the politically characterized pax americana continues to be US policy globally.
Somewhere between a flawed conscript military and a thinned volunteer military lay several gradations of segregated militaries which the US tried tentatively from the closing years of the Viet Nam conflict to the W. Perry model. I leave that to the military sociologist to discuss in explicitude.
The private institutions with the largest private endowment may address funding in ways to respond to this case’s categorical declaration that the military is to have identically equal access including facilities and datamining student records.
One supposes no university dependent upon government research grants, scholarship loans, and similar monies immediately will opt to forego that lineitem and revert to a more truly ivory tower approach to private governance of the institution of higher learning, though it is conceivable that some colleges will debate and perhaps adopt some version of that approach, over time.
As we know, the debate became strident in the sixties on some campuses, amid a cluster of seemingly unrelated social debate issues.
As someone who has known more than a few BC law grads and undergrads, I can still see poet R.Frost’s shock of silver hair in those early times when he had written those lines freshly, delivering them at BC’s forum:
“I shall be telling this with a sigh/
Somewhere ages and ages hence:/
two roads diverged in a wood, and I –/
I took the one less traveled by,/
And that has made all the difference./”
[copyright Frost family heirs; SCOTUSblog orthography apparently deletes hard-returns, so / indicates new line].
Perhaps the next SCOTUS decision in a related matter will include the social argument, from some campus which will have opted to refuse the government monies.
On a lesser scale, there are high school districts in CA which have banned all military recruitment.
Truly a clearcut decision by SCOTUS this time, but FAIR took a fragmented argument as its sole implement, when issues are deeper far.
Comment by JohnL — March 6, 2006 @ 8:28 pm
Roberts’ use of the utility-bill junkmail-enclosure argument will have short longevity: I would question whether any of us in this discussion avidly reads the literature which falls out of our PGandE bill. Some astute litigator might begin working on this approach right away, though it is a long trail to the Supreme Court. We should have the right to ask PGandE Not send the literature with the bill.
Comment by JohnL — March 6, 2006 @ 8:34 pm
Will this case matter much in the long run?
The Court didn’t rely on the Spending Clause, so it doesn’t really add to the unconstitutional conditions doctrine. The decision seems to rest on the government-can-do-anything-for-the-military rationale of O’Brien, which is cited favorably. The mention of September 11 early in the opinion also limits its importance to a historical moment. Forty years from now, when the don’t ask, don’t tell policy is as distant a memory as Vietnam era draft-card burning is for us now, will this case be seen as a major development in the law? I doubt it.
Although the outcome of the case wasn’t surprising, I was disappointed by one portion of the otherwise well-crafted opinion for the Court. I wasn’t persuaded by the Chief’s treatment of the argument in the Columbia professors’ brief–i.e., that the denial of on-campus recruiting to the military did not conflict with the plain language of the Solomon Amendment because the military was being treated in the same manner as any other recruiter that failed to comply with the schools’ non-discrimination policy.
The Court appears to adopt the (entirely plausible) view that the intent of the Solomon Amendment was broader than the plain language. But this part of the opinion appears to me to rely on an “ipse dixit.” It doesn’t give any legislative history or “surrounding circumstances” rationale for that view. Perhaps that’s because Scalia wouldn’t join an opinion with legislative history, and the Chief wanted a unanimous opinion if at all possible. But it’s not very satisfying. I thought the plain language argument was a clever and potentially serious escape hatch if the Court wished to affirm the 3d Cir. on different grounds. Obviously, there wasn’t such a desire on the Court.
Comment by Snowball007 — March 6, 2006 @ 9:48 pm
“It would appear that your hypothetical will remain hypothetical. Congress has no intention of doing what you suggest.
Posted by: Kent Scheidegger at March 6, 2006 08:20 PM”
My point is, why would that court reach an issue necessary only in a hypothetical case, as it did with its power to raise armies argument in FAIR, rather than defer that decision to another day. The spending power argument was more than sufficient.
Comment by ohwilleke — March 7, 2006 @ 10:26 am
I don’t think they did. Whether the Free Exercise Clause would support a religious objection to recruiters entering a religious institution’s campus is not raised by the case or answered by the opinion.
As for direct authority versus spending clause, I don’t think either path clearly qualifies as the narrower holding and therefore the preferable ground under the rule of Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885). A holding that the spending clause authorizes this rule regardless of whether Congress has the authority to legislate it directly would also have broad implications.
Comment by Kent Scheidegger — March 7, 2006 @ 1:45 pm