"Don't ask, don't tell" at the Supreme Court.

The law, lawyers, and the court.
Dec. 5 2005 11:14 AM

Tactical Withdrawal?

The easy way out for the Supreme Court on "don't ask, don't tell."

On Tuesday, the Supreme Court will hear arguments in FAIR v. Rumsfeld, a suit brought by a group of law schools that think it's unconstitutional for the government to take away their federal research funds because they won't let the military participate in their on-campus programs for employers who recruit students. The law schools say they are enforcing their equal-opportunity policies against the military because its "don't ask, don't tell policy" discriminates against gays and lesbians. The Bush administration says the universities have no business taking government money if they won't give military recruiters the full access they give other would-be employers. Not surprisingly, the case has attracted widespread attention as a test of universities' First Amendment rights and of the government's power to place conditions on federal funding. 

But FAIR v. Rumsfeld will also test whether the Supreme Court will embrace the stated opposition to judicial activism of its new chief justice, John Roberts. The strange thing about the FAIR case is that the federal law at issue, known as the Solomon Amendment, doesn't say what either the law schools or the government say it says. In fact, the statute does not actually raise the constitutional questions the parties have asked the court to answer. Any court opposed to activism should stay away from those hard questions.

As Richard Thompson Ford has noted in Slate, the military's discriminatory policies raise important constitutional issues about universities, free speech, and discrimination. On the one hand, the government may not put unconstitutional conditions on the receipt of governmental benefits. The Supreme Court's 2000 decision in Boy Scouts of America v. Dale seems to support FAIR's view that the Solomon Amendment creates such an unconstitutional condition. In Dale, the court held that private organizations have the right not to associate with gays. FAIR argues that universities ought to have the same right not to associate with those who discriminate against gays. On the other hand, there is also a well-settled constitutional tradition of granting Congress considerable leeway to set the terms under which federally funded institutions may operate.

That's the tension in FAIR, as the parties have framed the case. But the best reading of the Solomon Amendment makes the tough constitutional questions go away. As currently drafted, the amendment bars federal funding to universities that prevent military recruiters from gaining access to campuses and students "in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer." The key question, then, is the meaning of "equal in quality and scope." To answer, you have to decide what needs to be equal.

Take, for example, a city examination that puts the same questions to blacks and whites applying to be police officers. If black applicants pass at lower rates than white applicants, is the examination process equal? The answer turns on how you measure equality. If you're talking about racial outcomes, the examination is unequal. But if you're talking about equal treatment, the examination is perfectly equal. And in 1976, in Washington v. Davis, the Supreme Court upheld the constitutionality of such an examination based on the view that the Constitution requires equal treatment, not equal outcomes.

So, what kind of equality does the Solomon Amendment require? The equal treatment reading has to be the right one for at least three reasons. First, the amendment talks about equality in the "manner" of access, suggesting that what's at issue is process rather than results. Second, cases like Washington v. Davis make clear that—for better or for worse—the phrase "equal" in American law typically requires equal treatment, not equal outcomes. Third, if the statute entitles the military to actual access in recruiting, all sorts of absurdities result. Military recruiters who preferred to recruit at untraditional times of the year or in different buildings in the university, for example, would be able to threaten the university with the loss of funding unless the university agreed to specially accommodate them. Even the government purports to disown this reading of the statute, but it is the logical implication of the government's current position.

If our equal-treatment reading of the statute is right, then theconstitutionalquestionsraised in FAIR v. Rumsfeld disappear. The Solomon Amendment would not authorize the government to strip funding from universities whose law schools apply the same equal-opportunity policies to the military that they apply to every other potential employer. Law schools like Columbia, where we teach, tried to comply with the Solomon Amendment by giving military interviewers access to university facilities, but not to their on-campus employment recruiting programs. The universities weren't treating the military differently. They were treating the military the same way they would any other employer that refuses to hire gay people. In fact, many universities no doubt treated the military better than they would have treated another discriminating employer—anyone else would likely have been refused the services of the career-development office.

Why aren't the parties framing the case this way? The military's rationale is obvious: Its equal-outcome reading of the statute would give it maximum leverage to recruit on campuses in whatever way it chooses. As for the law schools, they worry that relying on the text of the Solomon Amendment could backfire. Congress could rewrite the law to condition federal funding explicitly upon giving privileged access to military recruiters. If the schools win based on the First Amendment, on the other hand, Congress can't go rewrite the Constitution.

But a decision that resolved the case based on the text of the Solomon Amendment alone actually has a lot to offer both liberals and conservatives.  If Congress were to rewrite the Solomon Amendment to give military recruiters special privileges, it would have to be plain about the lengths to which it was going to prop up "don't ask, don't tell." Lawmakers would have to make clear that in order to discriminate against gays, the military requires not equal treatment, but special treatment. If that's not good enough for liberals, they can also take comfort in avoiding a broad constitutional decision that many fear would give other private organizations the right not to associate with whomever they please—and thus to flout civil rights legislation.

For conservatives, a decision that stuck to the text of the Solomon Amendment would be appealingly nonactivist. As Justice Louis Brandeis' famous 1936 concurring opinion in Ashwander v. Tennessee Valley Authority observed, it has been a cardinal principle of constitutional law since the nation's founding that courts ought not to reach constitutional arguments unless a live case or controversy requires that they do so. As a court of appeals judge, Chief Justice Roberts reaffirmed this principle just last year. FAIR v. Rumsfeld will test the courage of the Roberts Court's anti-activist convictions.

Ariela R. Dubler and John Fabian Witt are law professors at Columbia University, which is not a member of FAIR. They joined an amicus brief signed by 56 members of the Columbia law faculty that urges the Supreme Court to resolve FAIR v. Rumsfeld based on the text of the Solomon Amendment.

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