Despite all the legal analysis in Chief Justice John Roberts’ 21-page opinion, announced Monday, in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), it’s hard to resist the notion that it comes down to this: He who pays the piper calls the tune.
When the military decided early in the Clinton administration on a “Don’t ask, don’t tell” policy toward homosexuals serving in the military, a number of law professors saw this policy as discriminatory against gay people. Several got their law schools to ban recruitment of students by the military on the grounds that allowing recruitment by an organization with a policy of discrimination would undermine their own policies against such discrimination, or aiding and abetting such discrimination.
In 1994, Congress passed the Solomon Amendment, which required that educational institutions receiving federal funds could not prohibit the military “from gaining access to campuses, or access to students … for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.”
A group of law schools sued, claiming violation of their rights of free expression and freedom of association — i.e., the law forced them to host an organization whose policies it considered discriminatory, and by accommodating a discriminating organization the schools’ own stands against such discrimination was undermined.
In an 8-0 decision — so far Chief Justice Roberts has written three decisions, all unanimous — the high court said the law schools must grant access. On the “he who pays the piper” principle this is hardly surprising — although courts have sometimes ruled in the past that people with opinions the government dislikes can still apply for government funds and not be denied, if they otherwise qualify, simply because of their opinions.
Mark Moeller, who edits the libertarian Cato Institute’s Supreme Court Review, said that in arguing that forcing accommodation is not the same thing as forcing speech or association, the court somewhat weakened the rights of free association proclaimed in the 2000 Boy Scouts of America v. Dale case. That ruling said the Boy Scouts can exclude homosexuals from being Scoutmasters. And we note that the opinion pays more potentially sweeping deference to Congress’ authority to raise armies — it says in passing that Congress could have imposed this requirement directly rather than indirectly through threatening to withhold federal funds — than might be desirable in a different context.
Still, the decision is hardly outrageous. It’s a reminder that federal funds always come with strings. Those who don’t like the rules the government imposes don’t have to apply for or accept federal funds.