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A Reminder About Rumsfeld v. FAIR

The statute in that case was a funding condition on federal money given to universities -- but the Court's decision held that the government could impose the same rule categorically, whether or not the universities got funds.

As the Rumsfeld v. FAIR opinion noted,

When law schools began restricting the access of military recruiters to their students because of disagreement with the Government's policy on homosexuals in the military, Congress responded by enacting the Solomon Amendment. That provision specifies that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds. The law schools responded by suing, alleging that the Solomon Amendment infringed their First Amendment freedoms of speech [including freedom from speech compulsion] and association.

But the Court expressly declined to rely on the government's extra power as subsidizer, and instead held that the government could impose the same rules even without a funding hook:

Congress' power to regulate military recruiting under the Solomon Amendment is arguably greater because universities are free to decline the federal funds. In Grove City College v. Bell (1984), we rejected a private college's claim that conditioning federal funds on its compliance with Title IX of the Education Amendments of 1972 violated the First Amendment. We thought this argument "warrant[ed] only brief consideration" because "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept." We concluded that no First Amendment violation had occurred—without reviewing the substance of the First Amendment claims—because Grove City could decline the Government's funds.

Other decisions, however, recognize a limit on Congress' ability to place conditions on the receipt of funds. We recently held that "'the government may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit.'" United States v. American Library Assn., Inc. (2003). Under this principle, known as the unconstitutional conditions doctrine, the Solomon Amendment would be unconstitutional if Congress could not directly require universities to provide military recruiters equal access to their students.

This case does not require us to determine when a condition placed on university funding goes beyond the "reasonable" choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.

Maybe the Court got it right in FAIR and maybe it got it wrong; and maybe it should have only evaluated the Solomon Amendment as a funding condition, and not decided whether a similar rule "could be constitutionally imposed directly." But that's what FAIR actually did decide.

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  • JonFrum||

    I'm sure I'm not getting it word for word, but when you take the King's money, you do the King's bidding. That's in the Constitution, isn't it? Should be. The default should always be 'no, you are not entitled to goodies.'

  • Eugene Volokh||

    I appreciate your point, and I agree that sometimes the Court takes that view -- though sometimes it doesn't, which is what the "unconstitutional conditions" doctrine is all about.

    But my point in this post is that the Court in Rumsfeld v. FAIR expressly declined to use your argument: It expressly said that, even if a university didn't take federal money, it still could be forced to do the Congress's bidding (at least to the extent that the bidding was limited to the requirements in the Solomon Amendment).

  • bernard11||

    when you take the King's money, you do the King's bidding.

    Well, in a monarchy you do the king's bidding whether you take his money or not.

  • TwelveInchPianist||

    "...when you take the King's money, you do the King's bidding."

    He takes my money without doing my bidding.

  • bernard11||

    Hey. It's good to be the king.

  • Voize of Reazon||

    I'll point out that this section is a little more trouble than it ought to be because it employs the "fallacy of the inverse". That, for unfamiliar readers, is a logical failure that involves taking the statement if A then B and concluding if not A then not B. Here, the Court takes a correct application of the unconstitutional conditions doctrine

    if the Constitution prevents Congress from directly controlling speech then it may not effect that control through funding conditions

    but then applies its inverse

    if the Constitution permits Congress to directly control speech then it may effect that control through funding conditions

    That inverse may be valid or not, but it does not follow from the validity of the original statement.

  • Eugene Volokh||

    Oh, the Court isn't saying that "if the Constitution permits Congress to directly control speech then it may effect that control through funding conditions" follows from the inverse. Rather, the Court is asserting that point as settled and clearly right:

    It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly.

    And it is indeed clear, I think: If the government can say, "You can go to prison for making true threats of violence" (to give one example of a restriction that could constitutionally be imposed directly), the government can say "You can't use government money for making true threats of violence" -- the government doesn't have to subsidize what it can criminalize.

  • Voize of Reazon||

    Yes, the Court does indeed make that assertion. My point is that the assertion stands alone, it gets no support from the preceding paragraph. The fact that the opinion contains that preceding paragraph suggests to me that the Court thought the unconstitutional conditions doctrine was relevant, and it isn't.

  • Eugene Volokh||

    I don't think that's what the Court was getting at. The decision below applied the unconstitutional conditions doctrine ("According to the Third Circuit, the Solomon Amendment violated the unconstitutional conditions doctrine because it forced a law school to choose between surrendering First Amendment rights and losing federal funding for its university"); the Court therefore felt the need to say something about it. But what it said was that there's no need to apply the unconstitutional conditions doctrine, because (1) "It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly" and (2) in this case, the requirements could indeed be constitutionally imposed directly.

  • Voize of Reazon||

    OK, I can see your point, it explains why the phrasing is "It is clear that" rather than "It follows that".

  • Krayt||

    ===The law schools responded by suing, alleging that the Solomon Amendment infringed their First Amendment freedoms of speech [including freedom from speech compulsion] and association.===

    The cake baker responded by suing, alleging that the [some state law] infringed their First Amendment freedoms of speech [including freedom from speech compulsion] and association.

    I guess some are more equal than others, as far as fear you will be seen as supporting some government-protected group, which your various tsk tsk groups don't like.

  • Eddy||

    Basically, the Court upheld a broader law than the one Congress actually passed. And if the broader law would be constitutional, then the law Congress actually did pass must be constitutional, too!

  • Bruce Hayden||

    Not sure if it was another law, or rather the federal government's power to raise an army. That was essentially the problem - that the military needed JAG officers and these schools were interfering with their ability to recruit them.

  • jdgalt1||

    Isn't that holding, by definition, mere dicta?

  • jsfreason||

    I don't think that's right. It's stronger than "mere" dicta in that it is required to respond to a particular point which would otherwise reverse the decision. It is less than essential, though, since the underlying claim is never adjudicated.

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