Balkin on FAIR v. Rumsfeld

[Lupu]

I accept Marty's distinction between the school's protest speech 
(obviously, the school need not condemn all recruiters if it 
condemns any, and I agree that the opinion expressly 
acknowledges the school's right to say -- not do -- what it wishes 
about military recruiters), and student protest (where I do think that 
the Solomon Amendment would require rules of equality among 
protesters).  So my assertion of an "equal hospitality" requirement 
was too strong.  But I can certainly imagine law schools where 
faculty (acting individually) or students would want to protest in 
stronger terms than the school's administration would use, and 
that's where the equal treatment requirement might have some 
force.  And I can see reprisal protests by conservative students -- 
you call our soldiers "homophobic," we'll call your left-wing recruiters 
some nasty names of our own.


On 15 Mar 2006 at 11:18, Marty Lederman wrote:

> 
> I'll respectfully disagree with Chip here. As I understood Paul
> Clement's concession, and the Chief Justice's statutory "holding," a
> school could single out military recruiters for disparate, unfavored
> treatment in the form of protest or criticism -- since those
> recruiters are, after all,differenently situated from all other
> recruiters: they arethe only ones permitted to discriminate against
> some of the students who attend the school.
> 
> For instance, Chip, if the school itself (not its students) posts a
> prominent banner condemning the military's discrimination, does the
> school have to post banners complaining of (some other) practices of
> all other recruiters? 
> 
> (As for Chip's student-protest hypo, I can't imagine any school
> wishing to discriminate among students based on the targets of their
> protests, so I don't quite see how the issue would come up.)
> 
> 
> ----- Original Message ----- From: "Lupu" <iclupu at law.gwu.edu>
> To: <CONLAWPROF at lists.ucla.edu>; "Marty Lederman"
> <marty.lederman at comcast.net> Sent: Wednesday, March 15, 2006 10:34 AM
> Subject: Re: Balkin on FAIR v. Rumsfeld
> 
> 
> Marty's very interesting post mirrors an internal conversation that we
> have had here at George Washington in the wake of FAIR. My view is
> that the Solomon Amendment and the decision require equal hospitality
> (or its absence) for all employers who recruit. That means that the
> school may not single out the military for special rules governing
> protest. If students are allowed to non-disruptively picket, or put up
> "homophobe" signs, when the military show up, they can picket, or put
> up equally hostile signs, when the ACLU, or Lambda Legal, or corporate
> law firms show up. If schools don't allow that, they will be violating
> Solomon, because they will be permitting a disturbance of access
> (which the protests might cause) for military employers only.
> 
> The analogy to Title VII, Title IX, etc. is flawed because the 
> relationship is different -- employers are one-time visitors, and can
> be presumed to be far more thick-skinned than employees or students
> for whom harassment would be an ongoing disturbance of the
> relationship with employers or schools.
> 
> > 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, Jackwrites 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 nota 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 areexempted from
> > recruiting rules with which all other employersmust 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 otherrespects (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, iftaken
> > 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 isbased 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."
> > 
> 
> 
> 
> Ira C. ("Chip") Lupu
> F. Elwood & Eleanor Davis Professor of Law 
> The George Washington University Law School 
> 2000 H St., NW
> Washington D.C 20052
> 
> (202) 994-7053
> 
> ICLUPU at main.nlc.gwu.edu
> ICLUPU at law.gwu.edu
> 
> 
> 



Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law 
The George Washington University Law School 
2000 H St., NW
Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu
ICLUPU at law.gwu.edu