A hearty congratulations to new Chief Justice John Roberts. Not only did the Roberts Court side with the defendant, Secretary of Defense Donald Rumsfeld, in the case Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), but Roberts was able to do so unanimously. Not only were there no dissents, there weren't even any separate concurrences.
As such, it was a huge rebuke to the academy. The academy, in this case 36 law schools, filed suit against the DoD protesting that the Solomon Amenment (which provides for forfeiture of certain federal monies if the institution in question does not permit military recruiters the same access to students as other employers) was a violation of their right to free speech and free association.
It seems that the shrinking violets at these law schools just couldn't bear to be associated with the military and their [congressionally-mandated] "don't ask, don't tell" policy. Now, the obvious solution is the one that Chief Justice Roberts asked during oral arguments. If the law schools had a problem with the military and its policies, why not just not take the money?
But that was unthinkable to the law schools. Cynically, they insisted on a right to suckle at the federal teat, with none of the responsibilities (as if it were beyond the power of Congress to attach conditions to receiving federal funds). This would certainly be news to the states, who have had to lower the threshold for driving while intoxicated and the legal drinking age in order to keep receiving federal funds for maintenance of highways.
Roberts and Co. smacked the law schools down, 8-0. (Justice Alito, who was not on the bench during oral arguments, was prohibited from deciding the case.) Way to go!
And, yet there is another aspect to this case that has gone unexamined as far as I can tell. It is this: why wasn't FAIR suing the Congress? Maybe you can't and that's why. But if you can sue the DoD, why not Congress?
In any case, if the law schools represented by FAIR had a problem with the Solomon Amendment, why not take it up with Congress?
Come on! You know the answer as well as I do. Objecting to the "don't ask, don't tell" policy was a pretext. The law schools were looking for a reason to deny military recruiters access to their students and they thought they had found it.
Does anybody really think that anyone would have conflated the law schools allowing military recruiters on campus with support for the military in general, or this policy in particular? Do the law schools allow RJ Reynolds and Phillip Morris to recruit on their campuses? Do you think anyone thinks that the nation's elite law schools support the tobacco companies? Of course not. The idea is ridiculous.
Many elite schools already deny ROTC access to campus and have since long before "don't ask, don't tell". (Trying to allow ROTC back on campus at Harvard was one of the disputes outgoing president Lawrence Summers was having with his petulant faculty.) This is just an extension of that policy. "Don't ask, don't tell" was merely the straw at which they grasped to do so.
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