EXTRA!!! FAIR v. Rumsfeld: The government wins

Campuses will have to allow military recruiters on campus or else lose federal funding.

When law schools began restricting the access of military recruiters to their students because of disagreement with the Government's policy on homosexuals in the military, Congress responded by enacting the Solomon Amendment. See 10 U.S.C. A. § 983 (Supp. 2005). That provision specifies that if any part of an institution of higher education de-nies military recruiters access equal to that provided other recruiters, the entire [*9] institution would lose certain fed-eral funds. The law schools responded by suing, alleging that the Solomon Amendment infringed their First Amend-ment freedoms of speech and association. The District Court disagreed but was reversed by a divided panel of the Court of Appeals for the Third Circuit, which ordered the District Court to enter a preliminary injunction against enforcement of the Solomon Amendment.

And the holding:

In this case, FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activi-ties these doctrines protect. The law schools object to having to treat military recruiters like other recruiters, but that regulation of conduct does not violate the First Amendment. To the extent that the Solomon Amendment incidentally affects expression, the law schools' effort to cast themselves as just like the schoolchildren in Barnette, the parade or-ganizers in Hurley, and the Boy Scouts in Dale plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents.

Because Congress could require law schools to provide equal access to military recruiters without violating the schools' freedoms of speech or association, the Court of Appeals erred in holding that the Solomon Amendment likely violates the First Amendment. We therefore reverse the judgment of the Third Circuit and remand the case for further proceedings consistent with this opinion.

Just my two cents: I always thought this was a stupid case to pursue. After studying Dale v. Boy Scouts and Hurley my final year of law school, I am glad FAIR lost, because had it won, private instutitions, if they so choose, would have had a broader reach in excluding groups that did not fall within their philosophy. This means more power to exclude gays. The people who brought this case in the first place RELIED on holdings that allowed private institutions TO EXCLUDE GAYS, even though such exclusions VIOLATED STATE PUBLIC ACCOMODATIONS LAWS. (Go read Dale. Big ups for New Jersey. Not so big ups for the Supreme Court.) Think about it for a bit before you call this holding a big step backwards for gay rights. You should be relieved. Furthermore, the First Amendment argument was really tenuous and was nothing but a testing ground for a very prominent law firm and prominent law professors (who commenced litigation) to push the boundaries of the law. Yay, you made it to the Supreme Court. Pat yourselves on the back.