Balkin on FAIR v. Rumsfeld

[Samuel Bagenstos]

Hold on a second.  Title IX (like Title VI and Section 504) says that people may not be "subjected to discrimination" in any institution that receives federal financial assistance.  The SA says that recipients of (many) federal funds may not have "a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents" equal access to campuses and students.  Maybe the SA prohibits harassment to the same extent as Title IX (which, after cases like Davis v. Monroe Bd. of Educ., isn't very much), but the language isn't the same, and I could imagine distinctions being drawn.  The SA is "modeled" on Title IX only insofar as it is a condition on educational institutions' receipt of federal money.  It's not modeled on Title IX in its substantive provisions.

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Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO  63130
314-935-9097
Personal Web Page:  http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog:  http://disabilitylaw.blogspot.com/

>>> <DavidEBernstein at aol.com> 3/15/2006 9:04 AM >>>
Two points: (1) given that the Solomon Amendment was modeled directly on 
Title IX, I don't see how one can say that it's substantively different.
(2) the whole issue of to what extent someone can make a member of a 
protected class feel unwelcome was one the main issues that led me to write You Can't 
Say That!  The hypothetical that occurred to me was an Armenian landlord who 
puts a sign up in his rental office to the effect of "I hate Turks.  They 
massacred my family, and they are all evil.  If it were up to me, I wouldn't have 
anything to do with them, except perhaps take up arms against them.  However, I 
am a lawabiding American citizen, and federal law requires me to treat 
Turkish tenants the same as everyone else.  Therefore, though I'm doing it under 
coercion, I will treat Turkish tenants and potential tenants exactly the same as 
everyone else.  But you should know that I'd rather not."
This statement, as I recall from when I looked into it years ago, would 
clearly violate the Fair Housing Act.  But I also think it's clearly First 
Amendment protected core political speech.  It strikes me in the absence of evidence 
that the landlord treats Turkish tenants in a discriminatory fashion, it would 
be unconstitutional to penalize him for his speech.
If so, the issue Marty raises is not so clearcut.  If law schools have a 
first amendment right to make it clera that they would rather not have military 
recruiters on campus, and an Armenian landlord has a First Amendment right to 
make it clear that he would rather not have Turkish tenants, is it so clear 
that, say, Bob Jones University  does not have a First Amendment right to make it 
clear that they are only admitting black students under duress?>

In a message dated 3/15/2006 9:55:38 AM Eastern Standard Time, 
marty.lederman at comcast.net writes:
Jack Balkin has written what is (in my admittedly biased opinion) the most 
interesting and informative post yet published in the blogosphere on the FAIR 
case, explaining, among other things, why some professors such as Jack, who 
shared my skepticism of, and discomfort with, the plaintiffs' arguments, 
nevertheless joined in the litigation:

http://balkin.blogspot.com/2006/03/alls-fair-in-law-and-war.html 

The post ends with a very interesting discussion of the Court's apparent 
holding on page 10 of the opinion (based on the SG's concession) that the Solomon 
Amendment does not prohibit schools from publicly protessting, and even 
condemning, the presence of military recruiters.  "For example, law schools might 
put signs next to the door where the military recruiters sit labeled 
'homophobes,' and it might arrange for military recruiters to undergo a 'walk of shame' 
as they enter the building," Jack writes.  As Jack notes, federal 
antidiscrimination laws such as Titles VI and IX would plainly not permit schools to act 
similarly with respect to, e.g., race and sex:  "If a school (and its faculty) 
were repeatedly to send the message that its black students were not welcome, 
even though the school did nothing else to prevent the students from attending 
the school, I have little doubt that the school would have violated Title VI 
of the 1964 Civil Rights Act. Similarly, if a restaurant had signs at its 
entrance saying 'blacks go home' and 'we resent serving blacks' and placed those 
signs deliberately in order to make blacks feel unwelcome, but did not refuse 
service to those blacks who came inside, the owners of the restaurant would 
probably be in violation of Title II. In other antidiscrimination laws, equal 
access isn't simply a requirement of no formal limits on physical access. Equal 
access usually means that you aren't allowed to send signals that the group is 
disfavored and unwelcome so as to discourage the group from entering and using 
the facility."

Thus, Jack writes that "if the Court follows the reasoning offered in Chief 
Justice Roberts' opinion (and at oral argument), . . . the Court must explain 
why the same reasoning would not apply in Title VI and Title II cases where 
racist schools and racist restaurants seek to drive off blacks by giving them 
formal access but sending a clear message that they are not wanted. That is to 
say, if the Court makes good on its promise of the law schools' and the law 
faculty's First Amendment rights to shun and protest military recruiters, it be 
must treating the equal access provisions of the Solomon Amendment differently 
than other antidiscrimination measures. That means that it will not really 
enforce the Solomon Amendment to give the military the same access as 
non-discriminating employers, because to do so would violate the free speech and 
associational rights of the law schools, their students, and their faculty.  If the 
Court takes this path, and follows through on what it said in FAIR v. Rumsfeld, 
then, ironically, it will have accepted that the Solomon Amendment does not 
really mean what it says: faculty and students must have the First Amendment 
right to make the military feel unwelcome, which is to say, they must have a First 
Amendment right to treat the military differently from other employers."

I would offer a very slight alternative view, based on statutory distinctions 
rather than (as Jack suggests) constitutional doubt:  Unlike titles VI and 
IX, the Solomon Amendment is not a classic or "true" "equal access" and 
antidiscrimination statute.  As the Court itself held in rejecting the 
Harvard/Columbia statutory argument, in at least one important respect the SA requires 
schools to give preferential treatment to military recruiters:  They are exempted 
from recruiting rules with which all other employers must comply.  Some 
(including the Court) might continue to call the SA an "equal access" requirement, but 
that description would be accurate only on a very circumscribed understanding 
of the word "access" (e.g., to mean physical space, perqs, literal access to 
students, etc.).  The statute does not prescribe "equal terms and conditions." 
 (If it did, the schools could exclude the military by applying to it the 
same rules that apply to all other employers.)  And once it's understood that the 
SA does not prescribe equal terms and conditions -- both requiring more 
favorable treatment in some respects (exemptions from conditions that apply to 
other employers) and permitting unfavorable treatment in other respects (public 
criticism by the school), it is really not analogous to the classic federal 
antidiscrimination statutes. 

Jack's post suggests that Roberts's "counterspeech" holding, if taken 
seriously, would mean that "faculty and students must have the First Amendment right 
to make the military feel unwelcome."  I wonder if Jack is on-board with such 
a broad principle.  After all, the schools don't have a "First Amendment 
right" to make African-American students feel unwelcome, do they?  Roberts's own 
opinion indicates to the contrary:  He explains (p.12) that "Congress, for 
example, can prohibit employers from discriminating in hiring on the basis of race. 
The fact that this will require an employer to take down a sign reading 
"White Applicants Only" hardly means that the law should be analyzed as one 
regulating the employer's speech rather than conduct."  This suggests that the 
Court's "schools may still protest" ruling is based on statutory construction, and 
is not constitutionally compelled -- which is as it should be.  Indeed, the 
paragraph in question (p. 10) is carefully, and repeatedly, cast in statutory, 
rather than constitutional, terms:

"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 retaining 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"). As a general matter, the Solomon Amendment 
regulates conduct, not speech. It affects what law schools must do*afford 
equal access to military recruiters*not what they may or may not say."

David E. Bernstein
Visiting Professor
University of Michigan School of Law
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste