Dean Kagan Would Rather Forget About Rumsfeld v. FAIR

But she did smuggle in a dictum that echoes Harvard's 2005 amicus brief about expressive activity in the classroom.

What a difference two decades make. In 2003, Elena Kagan was the Dean of Harvard Law School. At the time, many law schools had banned JAG officers from recruiting on campus, citing the "Don't Ask, Don't Tell" policy. Dean Kagan did not ban JAG recruiters, but voiced support for the ban. She articulated this position in an email to the community:

"I abhor the military's discriminatory recruitment policy. The importance of the military to our society—and the extraordinary service that members of the military provide to all the rest of us—makes this discrimination more, not less, repugnant. The military's policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong—a moral injustice of the first order. And it is a wrong that tears at the fabric of our own community, because some of our members cannot, while others can, devote their professional careers to their country."

Still, Kagan permitted the recruiters to use the Office of Career Services.

But there was also the Solomon Amendment. Under this federal law, colleges would be denied funding if they denied military recruiters access to campus. An association of law schools, known as the Forum for Academic and Institutional Rights challenged the constitutionality of the Solomon Amendment.

In 2004, Kagan joined an amicus brief before the Third Circuit, arguing that the Solomon Amendment violated Harvard's freedom of expression–in this case, excluding military recruiters as a way to protest "Don't Ask, Don't Tell." After the Third Circuit ruled for FAIR, Dean Kagan imposed the ban on military recruiters. But the Pentagon then threatened to withhold funding, and Kagan relented. (SCOTUSBlog links to many of the primary sources.)

The case was then appealed to the Supreme Court, with Kagan joining another amicus brief. The Court, per Chief Justice Roberts, ruled against FAIR by an 8-0 vote. (The case was argued in December 2005, before Justice Alito joined the bench.) The Court held that the Solomon Amendment regulated conduct, and not speech, and was constitutional. As I recall, the Dean of the George Mason University School of Law was the only Dean to file a brief in support of the Solomon Amendment. (Mason was a very special place in 2006–several months before I matriculated.)

I suspect Dean Kagan would rather forget about Rumsfeld v. FAIR. And, perhaps fittingly, in NetChoice, Justice Kagan downplayed the case. She only mentioned it briefly at the top of page 17 of the slip opinion, and in a curious footnote on page 18:

⁴ Of course, an entity engaged in expressive activity when performing one function may not be when carrying out another. That is one lesson of FAIR. The Court ruled as it did because the law schools' recruiting services were not engaged in expression. See 547 U. S. 47, 64 (2006). The case could not have been resolved on that ground if the regulation had affected what happened in law school classes instead.

I pulled the Harvard amicus brief in FAIR, and it included a very similar point:

Or, by the government's reasoning, Congress might use the hook of federal funding to require private universities to begin each class during hiring season by informing students of when and where military recruiters will be available for interviews. Because these conditions would not target "dangerous ideas," in the government's view they would present no constitutional problem. Plainly, however, such conditions would undermine both the principle of academic freedom and the First Amendment values that principle serves.

Dean Kagan never forgets an argument. Glad she smuggled that dicta into a majority opinion. It will be cited in contexts near and far. And, as nothing changes, Seth Waxman represented Harvard here, as he did in SFFA.

Justice Alito's NetChoice dissent points out how Justice Kagan glossed over FAIR, as well as Pruneyard.

Two precedents that the majority tries to downplay, if not forget, are illustrative. The first is PruneYard, which I have already discussed. . . .The decision in FAIR rested on similar reasoning.

Yes, Justice Kagan would rather forget about FAIR.

Of course, Justice Alito may have had some thoughts on this issue. Alito did not participate in the Third Circuit's panel opinion in FAIR. But he did serve in ROTC at Princeton. And he was affiliated with Concerned Alumni of Princeton, which was founded to bring ROTC back to Princeton, though he later disavowed that group.