The Price of Discrimination: After Fair v. Rumsfeld
Earlier this year, in Fair v. Rumsfeld, the Supreme Court upheld the Solomon Amendment and ruled that law schools that were part of a university receiving federal funds could be required to grant the same access to military recruiters that the schools provide to any other recruiter. The Court rejected the argument of the plaintiffs—a coalition of law schools and faculty members opposed to the military’s exclusion of gays and lesbians—that the government violated their First Amendment rights by conditioning federal funding on granting military recruiters equal access to recruitment facilities. The Solomon Amendment, the Court reasoned, did not require law schools and their faculty members to engage in any speech; the law left them free to voice opposition to military policies.
Since the Court’s FAIR decision, law schools around the country have been working on their plans to protest when the military arrives to recruit their (straight) students.
So far, however, no school has opted for the more obvious solution: tell the government it can keep its money and that the military isn’t welcome.
The FAIR plaintiffs argued that the government was forcing the schools to assist in “immoral” discrimination and to “abandon their . . . principles.” The presence of military recruiters, they said, made “some students feel like second-class citizens” and prevented law faculty from imparting to their students notions of “equality, human dignity, and other underpinnings of a just society.” The schools were, the plaintiffs argued, being made to “collaborate with military recruiters in an effort that the schools consider fundamentally unjust.” More generally, the plaintiffs contended, “a law school cannot effectively teach that it is immoral to assist discrimination when it affirmatively assists an employer that openly discriminates against the school’s own students.”
If all of these things are true (for the record, I had my own doubts), then how is it, now that the Court has ruled against them, that the schools can elect to take the federal money—rather than give up the funding and protect the important values they said were at stake?
To be sure, millions of dollars in federal funding are in play. But the federal government doesn’t issue funds for no reason. The government and society as a whole derive substantial benefits from the research and other programs the funding supports—cancer research, for instance. If every school, after the FAIR decision, declined the dirty money, would the government really forsake these benefits and yank its support?
And what if the government did deny funding rather than repeal the Solomon Amendment? Some schools already get by fine without government support. The FAIR schools would need to tighten their belts, end some programs, charge more tuition, and ask alumni for help. But is it unlikely they would be unable to manage.
Moreover, if the FAIR plaintiffs are right about what the presence of military recruiters means, it isn’t obvious that if, at the end of the day, the decision comes down to taking the funds or closing down the school that the right choice is to pocket the money and set aside your principles.
Or does even a principle against discrimination have its price?