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?