Rumsfeld v. FAIR
Nov. 29th, 2005 06:25 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumThis is an interesting case (and one which has no connection to the Alito nomination).
The case is about the Solomon Amendment, which removes federal funding from schools which make it difficult for military recruiters to speak with students.![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif)
iocaste has a good wrap up of the general issues, here.
To sum up a group of law schools decided to refuse access to their campuses to the DoD because the DoD has discriminatory policies (specifically they don't allow homosexuals to take part in the military).
Now, the law schools didn't completely sever access, they just restricted it, limiting it to leaving literature and cards, but not direct access to students. The issue lay fallow until after 2001. After that the DoD decided this was a big deal.
There are a lot of issues here. The first is that the access to colleges seems to be something in which the Gov't has an interest (whether this interest is compelling is a differnent question, and part of what may be answered when the Court hears the case). Another is whether such limits to federal funding are valid. Can a school fight Title IX because it doesn't like it? If Solomon is struck down in toto, then such a conclusion might be justified. Certainly there is the possibilty for challenge.
Those who are against Title IX wouldn't be so happy if the same argument were used to stop the conditional federal funding of clinics which give advice on birth control which discusses abortion, which might be done on the same grounds Title IX could be challenged.
But, and this may be the narrow way the court elects to walk, there is the issue of equal access. The colleges, as Harvard points out in it's amicus brief, the schools didn't place a specific exclusion on the DoD, they merely held them to the same standard they held any other prospective employer.
As,Docuticker,says, "Today virtually all law schools have a nondiscrimination policy that prevents employers who discriminate on the basis of race, gender, religion, or sexual orientation from recruiting on campus. In 1993, Congress passed the 'Don't Ask, Don't Tell' policy, which allows the military to exclude or discharge any member who 'engages in a homosexual act' or 'states that he or she is a homosexual.' Because the military bans openly gay service members, some law schools, citing their nondiscrimination policies, began barring military recruitment on campus. In response, Congress passed the Solomon Amendment. Under the present version of the Solomon Amendment, federal funding is withheld from any 'institution of higher education' or 'subelement' (i.e., law school) that has a 'policy or practice' that 'either prohibits, or in effect prevents' military recruiters access to students 'equal in quality and scope to that provided to other recruiters.'
Harvard goes on to say, In short, the government has chosen to enforce the Solomon Amendment as if it conferred upon the military a unique privilege--one shared by no other employer, including other agencies of the Federal Government--to disregard neutral and generally applicable rules designed to govern the conduct of all recruiters. There is, however, a better way to read the statute--one that could resolve this case without requiring this Court to venture into the constitutional tangle presented in the parties' briefs. Consistent with the statute's text, its history, and the government's own rhetoric, the Court should hold that the statute confers no such unprecedented trump. Rather, like all of its legislative predecessors, the Solomon Amendment applies only to policies that single out military recruiters for special disfavored treatment, not evenhanded policies that incidentally affect the military. Because there is nothing in the statutory text that would support a special rule for anti-discrimination policies, the only alternative would be to hold that the Solomon Amendment confers upon military employers the extraordinary right to claim immunity from any policy--no matter how evenhanded--that they deem burdensome to their recruiting efforts.
So, an evenhanded use of the non-discrimination policies isn't actually discriminating against the Army, it is rather a libertarian answer; in that the society (law schools) is demanding the gov't anwer to their wishes, and doing so with what might be termed a market incentive. When the military provides what they demand (equal service for homosexuals) they will give the military what they want (unfettered access to students).
That argument, is probably the best (both in practical terms, and in terms of legal disputation) for the policies the law schools are following. It also is the best way to thread the needle between the removal of gov't interest in such incentives as affecting Title IX and other such civil rights issues; which includes such things as the discussion of abortion, where federal funds are involved.
The case is about the Solomon Amendment, which removes federal funding from schools which make it difficult for military recruiters to speak with students.
iocaste has a good wrap up of the general issues, here.To sum up a group of law schools decided to refuse access to their campuses to the DoD because the DoD has discriminatory policies (specifically they don't allow homosexuals to take part in the military).
Now, the law schools didn't completely sever access, they just restricted it, limiting it to leaving literature and cards, but not direct access to students. The issue lay fallow until after 2001. After that the DoD decided this was a big deal.
There are a lot of issues here. The first is that the access to colleges seems to be something in which the Gov't has an interest (whether this interest is compelling is a differnent question, and part of what may be answered when the Court hears the case). Another is whether such limits to federal funding are valid. Can a school fight Title IX because it doesn't like it? If Solomon is struck down in toto, then such a conclusion might be justified. Certainly there is the possibilty for challenge.
Those who are against Title IX wouldn't be so happy if the same argument were used to stop the conditional federal funding of clinics which give advice on birth control which discusses abortion, which might be done on the same grounds Title IX could be challenged.
But, and this may be the narrow way the court elects to walk, there is the issue of equal access. The colleges, as Harvard points out in it's amicus brief, the schools didn't place a specific exclusion on the DoD, they merely held them to the same standard they held any other prospective employer.
As,Docuticker,says, "Today virtually all law schools have a nondiscrimination policy that prevents employers who discriminate on the basis of race, gender, religion, or sexual orientation from recruiting on campus. In 1993, Congress passed the 'Don't Ask, Don't Tell' policy, which allows the military to exclude or discharge any member who 'engages in a homosexual act' or 'states that he or she is a homosexual.' Because the military bans openly gay service members, some law schools, citing their nondiscrimination policies, began barring military recruitment on campus. In response, Congress passed the Solomon Amendment. Under the present version of the Solomon Amendment, federal funding is withheld from any 'institution of higher education' or 'subelement' (i.e., law school) that has a 'policy or practice' that 'either prohibits, or in effect prevents' military recruiters access to students 'equal in quality and scope to that provided to other recruiters.'
Harvard goes on to say, In short, the government has chosen to enforce the Solomon Amendment as if it conferred upon the military a unique privilege--one shared by no other employer, including other agencies of the Federal Government--to disregard neutral and generally applicable rules designed to govern the conduct of all recruiters. There is, however, a better way to read the statute--one that could resolve this case without requiring this Court to venture into the constitutional tangle presented in the parties' briefs. Consistent with the statute's text, its history, and the government's own rhetoric, the Court should hold that the statute confers no such unprecedented trump. Rather, like all of its legislative predecessors, the Solomon Amendment applies only to policies that single out military recruiters for special disfavored treatment, not evenhanded policies that incidentally affect the military. Because there is nothing in the statutory text that would support a special rule for anti-discrimination policies, the only alternative would be to hold that the Solomon Amendment confers upon military employers the extraordinary right to claim immunity from any policy--no matter how evenhanded--that they deem burdensome to their recruiting efforts.
So, an evenhanded use of the non-discrimination policies isn't actually discriminating against the Army, it is rather a libertarian answer; in that the society (law schools) is demanding the gov't anwer to their wishes, and doing so with what might be termed a market incentive. When the military provides what they demand (equal service for homosexuals) they will give the military what they want (unfettered access to students).
That argument, is probably the best (both in practical terms, and in terms of legal disputation) for the policies the law schools are following. It also is the best way to thread the needle between the removal of gov't interest in such incentives as affecting Title IX and other such civil rights issues; which includes such things as the discussion of abortion, where federal funds are involved.
