I tend to agree with Doug on political things, but I think there’s much ado over nothing with regards to his post on Rumsfeld v. FAIR. To summarize for those too lazy to read Doug’s post, he basically argues that the court side-stepped the issue of free speech and that there will be more rounds to the battle. He notes an instance where “peaceful” protesters ran some Army recruiters out of a job fair because it looked as though a recruiter, student, or university police officer might be hurt.
Let’s assume, for the sake of argument, that law schools begin practicing this sort of “speech” and are successful in keeping military recruiters off campus.
There are several points to consider. First of all, the universities at which this happens could be denied federal funding without the need to extend Rumsfeld v. FAIR any further. Further, the protests in these cases don’t really bring any new issues to the table. Finally, especially given the actual rationale for the holding in FAIR, the Law Schools will ultimately lose this battle no matter the grounds on which they proceed.
One argument advanced by amici in FAIR is that the military was, in fact, being treated equally when compared with other employers that discriminate against homosexuals. This argument was dismissed by the Court. “The statute does not focus on the content of a school’s recruiting policy, but on the result achieved by the policy. Applying the same policy to all recruiters does not comply with the statute if it results in a greater level of access for other recruiters than for the military.” If a university allows its students to protest in such a place and at such a time that effectively denies access to military recruiters, they will have run afoul of the statute. The same thing will be true again, their speech will not be regulated… only their conduct. To clarify the issue, imagine if the protesters were “Color Rights Activists” and were railing against the military’s lack of use of reds and blues in their combat uniforms. Or imagine they were protesting ANYTHING that had the effect of keeping the military recruiters off campus. It wouldn’t be permitted. They could protest those same things in a place, time, and manner that did not restrict the Military’s access, but they could not deny access. A holding to this effect would not be an extension of FAIR, but a fair interpretation of it. If, perchance, the university had no active roll in the protests, they could still be found to be in violation of the statute for allowing the protests to continue.
Given the above, one might argue that speech is being further restricted, or restricted in new ways. This is, of course, not the case. Universities have, for a long time, been able to define “free speech zones” on their campuses. Universities themselves, even public ones, can decide where individuals and groups can assemble and protest. If Universities can do this without impeding constitutionally protected speech, Congress certainly can.
Finally, it’s important to note that the Court put a lot of emphasis on the fact that, while this legislation was enacted pursuant to Congress’ spending power, it didn’t have to be. “Although there are limits on Congress’ ability to condition the receipt of funds, a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.” (citation omitted) It might not seem immediately obvious that Congress could impose the restrictions of the Solomon amendment directly, but consider this: one of Congress’ enumerated powers is the power to “raise and support Armies”. Not only could congress, by this power, require universities to grant access to military recruiters (regardless of whether or not those schools receive federal funds) but they could go even further. Should all of these avenues fail, and the armed forces find themselves in a desperate need of attorneys that no amount of compensation will remedy, they could simply draft some of every law school’s graduating class.
While I also agree that this has very little to do with Gay Rights, I don’t think the issue is one of military strength or weakness or one even tangentially related to confederacy or federalism… I think the Gay Rights angle is simply the best way for our ivory tower intellectuals to try to weaken an entity, our military, that they do not have an appropriate level of respect for. Fortunately for all of us, they will lose this battle.
