A Federal Appeals Court Rules That Universities Can Bar Military Recruiters Without Losing Federal Grant Money:
A Welcome Result Based on Flawed Reasoning

By Michael C. Dorf
Find Law Legal Commentary
December 8, 2004

In a nationally important constitutional case decided last week Forum for Academic and Institutional Rights ("FAIR") v. Rumsfeld, the United States Court of Appeals for the Third Circuit invalidated a federal statute withholding grant money from universities that deny military recruiters access to students on the same terms as other prospective employers. The court found a violation of the universities' First Amendment rights.

At issue was a law that cuts off nearly all of an educational institution's federal funding if even one unit of that institution applies its general anti-discrimination policy to military recruiters. In the case before the court, law schools had refused to allow military recruiters on campus because of the military's "don't ask, don't tell" policy--which discriminates on the basis of sexual orientation. The Department of Defense then invoked the law to threaten the universities affiliated with these law schools with the loss of millions of dollars of federal funding. The statute found unconstitutional by the court of appeals is truly odious, threatening both equal opportunity in the military and the institutional autonomy of universities. Yet, as I shall explain, the logic of the court's opinion striking it down is flawed.

In the end, the way to combat the discriminatory exclusion of a large class of patriotic Americans from service in the armed forces is to simply recognize "don't ask, don't tell" for what it is: invidious discrimination.

For many years, the U.S. armed forces have excluded homosexual service members. When President Clinton attempted to end the exclusion through executive action early in his first term, a political backlash resulted in Congress's codifying the policy in a federal statute.

The current policy is sometimes called "don't ask, don't tell" because the military does not proactively investigate the sexual orientation of service members without some reason to suspect homosexuality ("don't ask"), and the statute forbids service members from declaring that they are homosexual ("don't tell").

However, "don't ask, don't tell" is a misnomer insofar as it suggests that the military is indifferent to sexual orientation. That is not so. On average, over a thousand service members per year have been discharged for their sexual orientation under "don't ask, don't tell."

The policy has been challenged in the courts, although the issue has not yet reached the U.S. Supreme Court. Lower courts have upheld "don't ask, don't tell," typically citing the deference due the political branches in military matters.

Meanwhile, and largely unrelatedly, over the last decade and a half, municipalities, states, and other institutions have been expanding their anti-discrimination policies beyond traditionally suspect grounds such as race, religion, national origin, and sex, to include other categories such as veteran status, physical disability, age, and sexual orientation. Thus, in 1990, the Association of American Law Schools ("AALS") required that member schools not discriminate or tolerate discrimination based on sexual orientation.

Pursuant to the AALS policy, accredited law schools in the United States cannot engage in sexual orientation discrimination. Moreover, and also pursuant to the AALS policy, American law schools cannot permit prospective employers to recruit on campus unless they certify that they do not discriminate on the basis of sexual orientation (or the other AALS-forbidden grounds of "race, color, religion, national origin, sex, handicap or disability").

Under the AALS policy, therefore, American law schools cannot allow military recruiters seeking law graduates for the Judge Advocate General's ("JAG") Corps to recruit on campus, because in light of "don't ask, don't tell," the Armed Forces cannot certify that they do not discriminate on the basis of sexual orientation. On the contrary, they openly so discriminate, and, indeed, are required to do so as a matter of federal law.

Despite the AALS policy, for years many American law schools nonetheless accommodated the military and their graduates seeking careers in the military by arranging space for recruiters and students to meet off campus. The litigation that led to the appeals court's decision in FAIR arose when that compromise proved unacceptable to the Defense Department.

Irked by what it regarded as second-class treatment of the military, in 1994 Congress enacted legislation withholding federal grant money from educational institutions that denied military recruiters full access to students. Dubbed the "Solomon Amendment" for its principal sponsor, Congressman Gerald Solomon, the provision has been modified a number of times.

In its current form, the Solomon Amendment withholds all funds otherwise appropriated through the federal Departments of Defense, Labor, Health and Human Services, Education, and under the Related Agencies Appropriations Act--including federal funds for student aid--from any educational institution that "prohibits or in effect prevents" military recruiters from having access to students at any sub-element of the institution.

Thus, for example, suppose Columbia University's law school (where I teach), denies access to military recruiters. Doctoral students in the Columbia history department therefore cannot receive federal aid. Moreover, professors conducting research in the Columbia physics department are therefore ineligible for most federal grants. (It does not matter whether the unit of the university where the funds would otherwise be spent supports the law school's non-discrimination policy.)

Furthermore, under an informal Department of Defense policy, an educational institution will be treated as "prohibiting" or "preventing" access to military recruiters if it denies to these recruiters access that is equal in scope and quality with the access provided to other employers. Thus, the former compromise policy of many law schools--facilitating off-campus interviewing by JAG Corps recruiters--is no longer acceptable to the Department of Defense.

Given the breadth and severity of the Solomon Amendment and the manner in which it has been implemented, every university has succumbed to the pressure. Under protest, all American law schools--despite the sexual orientation portion of their non-discrimination policies--do allow military recruiters on campus.

A number of these schools, however, sued the Secretary of Defense, seeking to have the Solomon Amendment declared unconstitutional. Last week's appeals court decision was a clear victory for the schools. (Technically, it only authorizes a preliminary injunction. But as a practical matter, it is clear that, unless the Supreme Court reverses the appeals court ruling, the schools will ultimately win the case.).

In constitutional law, nearly everything depends on what lawyers call the "level of scrutiny" that applies to a challenged law or policy. A law that infringes a constitutional right must be subject to exacting scrutiny--essentially, a requirement that the government come forward with very strong evidence that the law is necessary to further some very important policy objective.

In the FAIR case, the appeals court said that the Solomon Amendment and its implementing procedures infringed the First Amendment rights of universities. It reasoned, therefore, that the government had to show how its underlying policy satisfied exacting (or "strict") scrutiny.

The appeals court conceded that military readiness is a very important interest. But crucially, it also thought it clear that on-campus interviewing was not essential to the recruitment of talented JAG Corps attorneys.

Why not? The court cited loan repayment incentives and targeted advertising as alternative means by which the military could recruit. And the court even suggested that the ill will generated by the Solomon Amendment itself impeded JAG Corps (and other military) recruiting. (The court might also have noted that the government could better achieve its objective simply by abandoning "don't ask, don't tell," which prevents the recruitment of talented and patriotic gays and lesbians into all branches and divisions of the armed forces.)

Accordingly, the appeals court concluded that the Solomon Amendment is not necessary--or in lawyerspeak, not "narrowly tailored"--to achieve its objective. That conclusion is eminently reasonable. However, it is not at all clear that the Solomon Amendment should have been subject to exacting judicial scrutiny in the first place.

The court applied strict scrutiny because it thought the Solomon Amendment infringed First Amendment rights. But did it? The court's argument proceeded in two steps. Both steps are necessary to the court's decision to apply strict scrutiny to the Solomon Amendment; yet both steps are flawed.

The appeals court first reasoned that educational institutions are "expressive associations" that cannot be forced to bear a government message contrary to their own views. It did so based almost entirely on an analogy to the Supreme Court's 2000 decision in Boy Scouts of America v. Dale. But in the end, that analogy is unconvincing.

In Dale, the Supreme Court ruled that the Boy Scouts--which, as a matter of national policy, disapprove of homosexuality--could not be required to retain an openly gay scout master. Having a gay man as a role model and spokesman for the organization, the Court reasoned, would undermine the ability of the Scouts as a whole to profess their anti-homosexual message.

Dale was and is a difficult case, mostly because it seems to provide a loophole through which organizations can evade national, state and local anti-discrimination law. And for that reason, courts should be reluctant to expand Dale. Yet the appeals court decision in FAIR did expand Dale--and did so dramatically.

To be sure, Dale can apply in the university context. Suppose, for example, that a federal law mandated that universities hire for their biology departments otherwise qualified professors who espouse creationism--a theory of the origins of life that is almost universally regarded by professional biologists as unscientific. Such a law would violate the First Amendment, as interpreted in Dale. If it were forced to accept among its members someone it regards as engaged in theology rather than science, the department's message about what constitutes science would be undermined--in just the way that the Boy Scouts' message was undermined in Dale.

But there's no "forced acceptance" argument--and hence no genuine analogy to Dale--in the Solomon Amendment context. The military recruiters are not teaching at the law schools--let alone, say, teaching antidiscrimination law there. Instead, they are visiting campus to offer jobs to law students. Such annual visits hardly undermine the laudable message of the law schools, in part because no reasonable person would think that military recruiters on campus speak for a law school or university in the way that a scout master speaks for the Boy Scouts or a biology professor speaks for a biology department.

Moreover, the recruiters' visits occur in a context that is far removed from the academic mission of universities. It is probably just a historical accident that universities have job placement offices, rather than outsourcing the task to employment agencies or allowing their students to fend for themselves.

In sum, by extending the rationale of Dale beyond membership to peripheral activities of an organization, the appeals court broadened that case's potentially mischievous loophole in anti-

discrimination law.

The appeals court's second step on the road to applying strict scrutiny was also problematic. The government argued that the Solomon Amendment did not require universities to grant access to military recruiters; it merely refused to subsidize those universities that denied such access.

The court rejected this argument under the rubric of what is known as the "unconstitutional conditions" doctrine. At bottom, that doctrine states that, as the appeals court put it (quoting an earlier Supreme Court decision), "the Government may not propose a penalty to produce a result which it could not command directly."

This way of seeing things has intuitive appeal, and indeed, unconditional conditions arguments sometimes make sense: Clearly, the government could not enact a law denying the home mortgage interest deduction to anyone who publicly expressed a view critical of the President--

for that would be perilously close to simply silencing First Amendment-protected dissent.

But other unconstitutional conditions arguments are plainly untenable. Suppose the government hires an advertising agency to run a public education program urging people to "vote for the candidate of their choice." Surely the government is under no obligation to spend equal sums funding a competing agency's advertising campaign urging people to "skip the long lines at the polls and go to the movies" on Election Day.

Is the "unconstitutional conditions" argument in FAIR a winner or a loser? The question is a tough one--but the appeals court in FAIR ducked it. In a footnote, it simply announced that the Solomon Amendment "does not create a spending program; it merely imposes a penalty--the loss of general funds." Therefore, the court reasoned, the Amendment does not fall under the "pick your own advertising message" rule--the rule that the government need not fund a message with which it disagrees.

To be sure, the appeals court found some support for the distinction between spending programs and pure penalties in Supreme Court cases. But the distinction nonetheless makes little sense.

Suppose, for example, that the government wishes not to fund organizations that engage in what the public regards as an odious practice--the employment of child labor overseas, say, or involuntary euthanasia of the severely disabled. And suppose government officials plausibly conclude that withholding subsidies for the particular activity insufficiently distances public policy from the odious practice; it wants, instead, to cut off funds to the whole organization.

Shouldn't the government sometimes be permitted to cut off funding with an axe rather than a scalpel? Money, after all, is fungible. When government funds go to an organization's innocuous programs, the organization has that much more money to spend on the odious practices.

Whether and when should government be permitted to condition all funding to an organization based on the activities of just one part of that organization? These are often difficult questions.

But the problem with the court's logic is this: It makes no sense for the answers to turn on whether the condition--no child labor, or no involuntary euthanasia, for example--appears in an across-the board law versus in the particular funding measures themselves.

Yet the appeals court relied on that meaningless distinction to find that the Solomon Amendment is a penalty (and thus constitutionally unacceptable) rather than the withholding of funds (and thus constitutionally acceptable).

None of this is to say that the bottom-line decision in FAIR is wrong. Most obviously, the result could be justified by the argument that the underlying exclusion of gays and lesbians from the armed forces is unconstitutional.

As I noted above, the lower courts have tended to reject this claim. But most of the relevant cases predate the Supreme Court's more recent suggestions that discrimination on the basis of sexual orientation is constitutionally problematic. Were the case to reach the Supreme Court now, it is far from clear that the Justices would reject an Equal Protection challenge to "don't ask, don't tell."

In the meantime, the weaknesses in the appeals court's opinion invalidating the Solomon Amendment should not blind us to the real evil at work here: Invidious discrimination against Americans who seek an equal opportunity to serve their country.

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