Thursday, July 01, 2010

FAIR and CLS v Martinez

By Mike Dorf

I have a new Op-Ed in the NY Daily News in which I argue that the majority's reasoning in Christian Legal Society (CLS) v Martinez vindicates the position that Elena Kagan took, along with her Harvard colleagues, in urging the Court to rule that excluding the military from using the career services office was consistent with the Solomon Amendment.  Although the SCOTUS ruled unanimously against Kagan's position in Rumsfeld v. FAIR, the CLS reasoning cuts the other way.  In a nutshell: In FAIR, the Court said that, as used in the Solomon Amendment, the requirement of equal access meant that military had to be allowed to recruit on campus even though it violated a nondiscrimination condition applicable to all employers; by contrast, in CLS, the Court said that Hastings did not act in a way that adversely singled out CLS in applying its all-comers policy.  In other words, in FAIR, the military seeking an exemption from an access policy was a matter of seeking equality, while in CLS, a student group seeking an exemption from a similar access policy was a matter of seeking a special privilege.

Here I'll draw another contrast between FAIR and CLS--one which bothered me in writing the AALS amicus brief in the latter.  In FAIR, the law schools took the position that forced association of the schools with the military's discriminatory recruiting would violate the law schools' right of expressive (non)association, while in CLS the law schools took the opposite view--namely, that CLS could be made to comply with the Hastings all-comers policy as a condition of various benefits.  But FAIR was also a benefits case--or at least it could have been.  The Court might have said that the federal government wasn't forcing any unwanted expressive association on the law schools because they could always turn down the money.  Ultimately I didn't worry too much about the fact that the AALS position in CLS was in some tension with the position the Association took (when not represented by me) in FAIR.  Having lost in FAIR, the law schools were entitled to try to use the FAIR decision any way it might help.

It's also worth noting a peculiarity regarding funding.  In dissent, Justice Alito repeatedly emphasizes that very little money was at issue in CLS, so that it is not really, or not solely, a funding case.  It's a somewhat odd move, because the other things that are at stake are also resources, albeit non-monetized ones (e.g., access to classroom space, email system), and the issue in any sort of a forum case is what limits the proprietor gets to set on speech in the forum.  But the point I would note here is that for Justice Alito the fact that very few dollars are at stake is a reason to treat this as not a funding case while, conversely, in FAIR, the fact that an enormous amount of money was at stake appeared to (properly) play an important role in the Court's not treating it as a funding case.  There, the Solomon Amendment would withdraw all federal funding from a university if any unit of the university denied military recruiters most-favored-recruiter status.  I was worried in FAIR that the Court might say that the govt could attach conditions to funds--which would have been a dangerous precedent for universities that receive government funds, which is to say just about all of them.  But the Court did not rest its decision on the funding aspect of the Solomon Amendment, treating the enormous amount of funding at stake as rendering the case effectively one of direct coercion (albeit permissible direct coercion in light of the rest of the Court's analysis).

Note that all of the CLS dissenters were also in the FAIR majority and so we can say of all of them (i.e., CJ Roberts, and Scalia, Thomas, and Alito, JJ), that a case ceases to be about funding if a) very little funding is at stake (CLS) or b) a whole lot of funding is at stake (FAIR).  This leads me to a waggish question: How much funding is enough but not too much to make a conditional funding case about funding?


Hashim said...

I don't quite understand either of the points you've made in this post.

As to Kagan -- how does the holding that CLS is not *violating* the 1A by enforcing its nondiscrimination policy in the *absence* of a federal law requiring an exemption in any way salvage the flatly repudiated position of the law schools in FAIR that they had a 1A *right to violate* a federal law requiring such an exemption? No one in FAIR was claiming that the law schools were violating any rights in the absence of the Solomon Amendment, and nothing in CLS suggests Hastings could enforce its policy in the face of a federal statute to the contrary. CLS thus in no way changes the fact that Kagan and most of the rest of the academy were dead wrong to argue that they had a 1A right to disobey the Solomon Amendment.

As to the non-funding holding in FAIR: The Chief's point was simply that, because the Solomon Amendment would have been constitutional even if it was a direct prohibition, it followed a fortiori that it was OK as a mere funding condition. ("It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly.") That in no way suggests that a substantive requirement that could not be justified as a direct prohibition could not be justified as a lesser funding condition, simply because of the size of the funds involved. While there might be restrictions under Dole, etc., FAIR's got nothing to do with it.


Michael C. Dorf said...


1) Kagan did not argue that the Solomon Amendment violated the law schools' 1A rights. That was the argument presented by FAIR, accepted by the 3rd Cir, and rejected by the SCOTUS. But Kagan, like some other liberals apparently saw the flaw in that argument. (That's why I criticized the reasoning of the 3rd Cir opinion, even as I welcomed the result: ). Before the SCOTUS, Kagan and her Harvard colleagues argued that the law schools' policies COMPLIED with the Solomon Amendment because, UNDER THE STATUTE, equal access meant access on the same terms, not the same access even without compliance with those terms. That's also what Kagan said on Tuesday in response to questions from Sen. Sessions. Now it's true that this statutory argument was also rejected by the SCOTUS in Rumsfeld v FAIR, but largely based on reasoning that, as I explain in both the Daily News op-ed and the blog post, is in tension with the reasoning of the majority in CLS v Martinez.

2) Yes of course I agree with you and the CJ and the rest of the Court that a condition that can be imposed directly can, a fortiori, be imposed as a condition of funding. My point was that the Court in FAIR didn't SIMPLY rely on the fact that the Solomon Amendment was a funding condition, and I applauded that for two reasons: a) there are special reasons to be wary of attaching strings to receipt of funds by universities, as the Court recognized in dicta in Rust v Sullivan, citing the Keyishian case; and b) when the loss of funding is grossly disproportionate to the condition, then funding can become "coercive" as that term is used in the Spending Clause cases.

Hashim said...

Fair enough, though the "tension" is minimal at best. CLS held that, for 1A purposes, the supposed all-comers policy is not *viewpoint* discriminatory regardless of its disparate impact on expressive associations. That hardly supports the notion that, for statutory interpretation purposes, the military was getting "access" that was "equal in quality and scope" to "any other employer," simply because all employers that discriminated against gays were banned from campus. The military was the *only* employer *required by federal law* to discriminate against gays and a contrary interpretation would render the Solomon Amendment a nullity since virtually every law school has a ban on sexual-orientation discrimination. More generally, I'm betting you don't think that CLS is much support for interpreting "equality" statutes to exclude discriminatory impact. And I'm quite certain that every Justice in the CLS majority would still interpret the Solomon Amendment precisely the same way they did in FAIR. For what it's worth, I actually agree w/ the CLS majority on the no-viewpoint-discrimination holding -- indeed, I agree w/ JPS that even the written nondiscrimination policy was not viewpoint discriminatory -- yet I still think the Harvard brief in FAIR was such an implausible reading of the statute that it is properly considered a significant, but unusual, blemish on Kagan's deanship.

Michael C. Dorf said...

The best argument against the interpretation of the Solomon Amendment urged by the Harvard brief was, as you say Hashim, that it would have made the law essentially pointless in light of the facts on the ground leading up to the passage of that particular version of the Solomon Amendment. However, given the textualist proclivities of the Court, it was reasonable for Kagan et al to think that the Court would be unmoved by these factors in light of the text. And in fact, CJ Roberts makes the point that you make mostly as an afterthought in FAIR. His main argument is based on the text and the concept of "equality," a concept that is closely related to the concept of "neutrality" in free speech doctrine. Thus, I think the tension with CLS is considerable. As for which way it should be resolved, I don't have a strong general view. I think that in some circumstances a text requiring "equality" requires equal treatment but perhaps its penumbra can be construed to forbid certain sorts of disparate impact.

Again, though, the main point was that Kagan's interpretation of the Solomon Amendment at the time she offered it was not crazy. And for what it's worth, it wasn't just her interpretation. That brief was signed by a good portion of the Harvard faculty, including Bob Clark, her immediate predecessor as dean, mistakenly held up as holding a different view by Sen. Sessions.