I read through the Court's ruling in Rumsfeld v. FAIR quickly, and will be commenting more on others' comments than the decision, having already opined on the case itself well before the oral arguments on it. I'm not surprised by the result. At most, I'd thought there was a chance of a dissent based on the Dubler-Witt argument that A. Rickey finds incredible. But a ruling against the military's recruitment procedures, in wartime, with the Bob Jones precedent to hobble liberal justices from giving schools free speech rein to take government money while violating federal law? No.
Diverging from the obvious topic of universities, homosexuals and the military, Milbarge looks for Congressional versus presidential power "Tea Leaves in the Solomon Amendment Opinion":
'The Constitution grants Congress the power to "provide for the common Defence," "[t]o raise and support Armies," and "[t]o provide and maintain a Navy." Congress' power in this area "is broad and sweeping". . . . That is, of course, unless Congress exceeds constitutional limitations on its power in enacting  legislation."'I looked at the statement through that lens and thought exactly the opposite of Milbarge's conclusion; rather than seeing it as foreshadowing limits on Article II power due to the "broad and sweeping," I thought, "Uh oh, Article II-John Yoo stick of 'Congress exceeds constitutional limitations.'" This is some murky tea.
Now, there's nothing particularly remarkable in that statement. But when viewed in light of the ongoing controversy over the Executive's power as Commander-in-Chief in the war on terror vs. Congressional power to limit the President's authority regarding, say, detainees or wiretaps, this passage could take on more import than mere throat-clearing at the opening of the Court's discussion of the Spending Clause issues in the Solomon Amendment case.
Should law schools take up Will Baude's suggestion of dissociating from their universities, thus enabling the rest of the institution to keep the money and the law school to keep the speech, they're likely to be met with ever-wider definitions of what constitutes federal support, including loans. Is there a private law school in the country that could remain open without government-backed funding for its students' tuition fees?
Paul Horwitz's belief that the AALS was driving individual law schools' opposition to discriminatory recruiters, and that, unlike the discrimination at issue in Boy Scouts v. Dale, recruitment isn't integral to schools' mission, is in some opposition to my previously-expressed idea that the Dale dissent actually favors distinguishing among law schools. An institution with a very clear and absolute commitment to sexual orientation equality, extending from partner benefits for employees to recognizing same-sex couples for social events and student housing (neither of which, to my knowledge, is required by the AALS), is engaged in an expression that would be contradicted by countenancing discrimination in any area, including recruitment. Employee benefits aren't central to a law school's academic mission, but actions that went above and beyond what the AALS demands for accreditation can be viewed in total to constitute expression.
Dale Carpenter highlights the portion of the opinion on which the Outlaws seized:
As a practical matter, the ruling changes nothing in the steps many schools have taken to “ameliorate” the presence of military recruiters by, for example, hosting fora on the military’s policy on the day military recruiters are present, or posting notices of opposition to the presence of discrimination on campus, even outside the door where military recruiters are interviewing. In fact, the decision today appears to give a bright green light to these efforts that some schools may have avoided until now for fear they would lose funding. From the opinion:This was a real concern -- one of the measures I suggested (having the school institutionally encourage students to go off-campus for JAG interviews) was regarded by some students as likely to be treated as impermissible discrimination against the military recruiters. After all, according to the dean of Columbia Law, "[b]efore 2001, military recruiting was coordinated by the University's Government Affairs office, instead of by the Law School's Office of Career Services, and interviews were conducted nearby, instead of in a Law School building. However, since 2001, the U.S. Department of Defense ("DOD") has rejected this approach, insisting instead on equal access to our recruiting process, based on its interpretation of federal legislation known as the Solomon Amendment." The LGBT group at Columbia Law responded to the Solomon decision with a schoolwide email* stating, inter alia,The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while maintaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools could 'put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests.').Slip op. at 10. There was some question before this decision whether schools that posted these notices, or even organized protests, might not be giving the military access to their facilities that was "equal" to the access given other employers. As a matter of statutory construction, that worry should be over. Thus, the Court suggests, ameliorate at will.
In light of the continuing discrimination LGBT students will face on the law school and university campus, we ask all University administrators to continue to take action on this issue. Unless Columbia wishes to see its non- discrimination policy rendered meaningless, the University and the Law School should continue to support an exercise of free speech rights in denouncing the military's discriminatory policy. The Court has said that nothing in the Solomon Amendment prohibits schools from engaging "in speech" or "organizing student protests." We urge the Administration to respond to the military's violation of its non-discrimination policy by organizing and funding school- wide protests of military recruitment efforts.Of course, I prefer my own solution of leaving the recruiters twiddling their thumbs on campus by having all interested students go off-campus for interviews.
* Unlike some CLS students, I thought the email was worth sending to the student body, not for the Outlaws' disappointment with the decision (which was kind of a "duh"), but for their announced intention to push the administration to fund (!!!) protests. Have we come a long way from the old school days of protest when students took over Columbia by force rather than agreement...