By Paul Greenburg
It shouldn’t have come as a surprise when the U.S. Supreme Court came down firmly on the government’s side in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) - not after the justices had given short shrift to the other side during the oral arguments. That was the side of some of the country’s most prestigious, ivy-covered law schools.
The result of this difference of legal opinion was summed up masterfully by the headline over The Wall Street Journal’s editorial on the subject: “Army 8, Yale 0.”
(What about the ninth member of the court? The court’s newest member, The Hon. Samuel Alito, got to the game too late to participate in the court’s deliberations.)
The scrimmage line had formed some years back when Congress passed the Solomon Amendment cutting off federal funds for universities that refused to let the military recruit at their law schools. The law schools demurred, claiming any such penalty was unconstitutional. Their theory of the case, not to put too fine a point on it, was that the universities should be able to go on receiving U.S. dollars even if their law schools barred the U.S. military from their hallowed precincts. That’s not just creative thinking, it’s real nerve.But the Supremes weren’t impressed. At least not in a good way. By the time he was through handing down the court’s unanimous opinion, its still new chief justice - John Roberts - had found more holes in the law schools’ case than in the Houston Texans’ line.
And he’d opened up one or two of his own: Not only could Congress put conditions on its federal aid, he wrote on behalf of the court, but it could require that universities give the military access to their campuses whether they received federal aid or not.
Because, as the chief justice noted, “The Constitution grants Congress the power ‘to provide for the common Defence,’ ‘(t)o raise and support Armies,’ and ‘(t)o provide and maintain a Navy.’” Yep, there’s still nothing like reading the Constitution to determine what it means.
In their own defense, as opposed to the country’s, the law schools could offer only a tortured reading of the First Amendment: Allowing military recruitment on campus, they argued, would violate their freedom of expression. Since it would imply that the schools were endorsing the military’s policies, specifically the Don’t Ask, Don’t Tell rule that puts a special burden on homosexuals in the military.
The law schools aren’t happy about that rule and, truth to tell, I’m not crazy about it, either. But I’m not about to boycott the armed forces of the United States on account of that policy. Because I owe them too much. Like loyalty and gratitude and respect. And a decent welcome when they drop by to make their case. Don’t all Americans owe the military that much, even those who teach law?
I was pleasantly surprised when I heard about the Supreme Court’s decision. Pleasantly surprised because, for once, the justices came together in a common sense manner to promote a unanimous majority decision. The Ivy League schools mentioned in this case not only had no case, but they promoted an environment of discrimination and unconstitutionality.
It’s only common sense that while schools may not agree with government policy, they are free to give up federal funds to uphold their disagreeing point of view. As Congress has the power of the purse and is expected to uphold their constitutional responsibility of raising armies and providing for the common defense, the schools have no choice to comply with Congress’ mandate.