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?

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8 Responses

  1. Paul Gowder says:

    Maybe the department of defense would have to give all its funding to the religious schools that presumably are fine with discrimination. That’s a terribly amusing idea. Perhaps they’d research “faith killing.”

  2. John Armstrong says:

    You’re not serious. You can’t be.

    You’re saying that I should have my funding cut while I’m a Ph.D. student in mathematics when I’m just barely making it check-to-check as it is just because the Law school wants to make a point? When I first arrived at Yale in 2000 the lion’s share of my funding was derived from the department’s VIGRE grant, which came from the NSF. Cut that and even sharing a three-bedroom apartment with two other cash-strapped students would have been untenable.

    Cutting funding doesn’t just make research projects vanish — it can destroy people’s lives who were promised (and made long-term plans based on) receipt of that money.

    And as an aside, saying that “millions of dollars in federal funding are in play” makes you look rather innumerate. Try billions. With a ‘b’.

  3. KipEsquire says:

    Did you even read the opinion?!?

    C.J. Roberts made it clear that the government could compel the granting of access to the military even in the absence of federal funding:

    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.

    Good grief.

  4. Jason Mazzone says:

    That may be. But that isn’t what the statute does. There is surely a difference between doing something because the law says you must and doing something because otherwise you’ll lose some money. JM

  5. Paul Gowder says:

    Kip: only the First Amendment/unconstitutional conditions issue was before the court, and it went off directly on the issue of whether it was a regulation of speech. When we’re talking about direct access, I’d argue that numerous other constitutional provisions would prevent Congress from directly imposing the access requirement. Off the top of my head: (a) Fifth Amendment (takings clause), (b) Fourth Amendment, and even (c) Third Amendment. The government does not have the authority to intrude upon private property and forcibly use that property, without compensation, for military recruiting purposes.

  6. Simon says:

    With apologies in advance for the intemperate language…

    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.

    Interesting. Have law schools around the country also been working on their plans to protest when any member of Congress walks onto the campus, given that it was Congress which passed 10 U.S.C. §654, and that it remains exclusively within the purview of Congress to rescind it?

    Please. This has nothing to do with Don’t Ask Don’t Tell, and everything to do with ongoing liberal hostility to the military. That the schools continue to protest the presence of the military (which is obligated to follow §654) while permitting on campus the people actually responsible for the policy (and, moreover, taking money from them), make their protestations ring hollow. In short, I will become a believer in the veracity of this supposed hostility to §654 when the law schools focus their hostility on the 535 people who really are responsible for the policy they claim to deprecate, instead of displacing that hostility onto the suspiciously politically convenient target of an institution they would despise with or without §654.

    I sometimes wonder if FAIR actually realizes (on any conscious level) what it’s really doing, or if its members have honestly deluded themselves that they really are simply standing up for homosexual rights. That is, are they disingenuous or deluded? I’m not sure it matters, in any practical sense, but it’s an interesting philosophical question.

  7. Emily says:

    The JAG protests during recruitment season are precisely directed at the men and women who think that cancer research is a reasonable price to pay for having only straight attorneys from top law schools. And when the threat was only to take away law school funding, the schools happily agreed and began fundraising to make up the difference so that they could stand by their principles.

    This is not about liberal schools being “anti-military.” Plenty of people protest the on-campus recruiting and subsequently interview for JAG positions and the schools support that. Rather, this is about holding employers accountable for discriminatory practices against highly qualified applicants for embarassing reasons.

    An interesting side note – since the lawsuit, the gov’t has been spying on certain student groups and individual students (at least at my school). The school has been pursuing a FOIA request through the courts. It looks like we won but lost: the request was granted but it’s based upon students that signed up to interview with the military. No one has for the past two years.

  8. Simon says:

    Emily,

    Don’t believe you. Sorry. I believe that they might sincerely think that “this is about holding employers accountable for discriminatory practices against highly qualified applicants,” but as I said above, it’s not really relevant whether FAIR is disingenuous or deluded. The gaping hole in FAIR’s argument is perfectly encapsulated in what you wrote: if your problem was really “discriminatory practices against highly qualified applicants,” don’t you think that you’d be protesting against the people responsible for writing and maintaining that HR policy, rather than the people who are obligated to apply it?

    Let’s think of this in terms of remedy. I presume (although correct me if I’m wrong) that the goal of those who say they’re opposed to “discriminatory practices against highly qualified applicants” under §654 is that they want said practices under §654 to stop. Right? Well, who can grant that remedy – can the military? Or is that something that only Congress can do?

    (If you think that the military can, by the way, I’m really interested to know what other Federal laws the mlitary can pick and choose whether they feel constrained by. If that’s the road you want to go down, I would submit that for your own good, you’d better come up with a limiting principle rapidly, because if this guy is right, you might regret it in a couple of years).

    I could buy FAIR’s argument if they also picketed the military, symbolically, although their main target was Congress. But that is not what is happening. How many law schools have declined to take money from the people who run this policy they claim to deprecate? How many law schools have banned members of Congress from campus for perpetuating that policy?

    FAIR doesn’t just want to have its cake and eat it, it also doesn’t want to know anything about the chef who made the cake or what kind of labor he’s got working in his kitchen.