Understanding the Scope of Rumsfeld v. FAIR

 Rumsfeld V. FAIRThe Court ruled unanimously that universities can be forced to house military recruiters (2006). This was despite the fact that recruiters were often discriminated against based on sexual orientation and other factors. Also, universities may be required to disclose information about military recruiters as they would about any other university recruiters (e.g., notices regarding recruiting events and e-mails). It is possible to criticize this decision. For example, take a look at Dale Carpenter’s article. Unanimously wrong. It’s an example.

That leaves us with the questions of its scope, as well as how the precedent might impact on other debates. (e.g., whether platforms using social media should be able to decide which content to show) Although there are many issues to be debated, here are two things that I find particularly important.

[1.] Rumsfeld Upheld the Solomon Amendment which placed its conditions on spending by government agencies. Many assume therefore that such precedents are limited.

But it’s not, because the Court expressly held that the law would be constitutional even if imposed as a direct mandate, not as a spending condition—”the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement.” It was noted by the Court that caselaw regarding “unconstitutional circumstances” was complex:

Because universities have the freedom to reject federal funding, Congress has greater authority to control military recruitment under the Solomon Amendment. The Solomon Amendment gives Congress greater power to regulate military recruiting. Universities are free to decline federal funds. Grove City College v. Bell(1984) we dismissed a claim by a private college to condition federal funding on it complying with Title IX of Education Amendments of 2002. We also rejected that assertion. This argument we considered “warrantable.”[ed]Only brief consideration,” because Congress is allowed to add reasonable, unambiguous conditions on federal financial aid that education institutions aren’t required 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.

Banner 3

However, other decisions recognize that Congress cannot place restrictions on funds receipt. 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) (quoting Board of Comm’rs Wabaunsee County. v. Umbehr (1996)). (1996)

It decided that the best way to avoid all of this was by avoiding it:

The case doesn’t require us to consider whether a condition on university funding exceeds the “reasonable choice” offered by. Grove CityIt becomes an illegal condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. The statute doesn’t place unconstitutional conditions on federal funding receipts, as the First Amendment does not prohibit Congress from imposing the Solomon Amendment access condition.

[2.]Many have suggested that Congress has the power to pay for military services, as well. Rumsfeld limitless. It’s not true, however. Rumsfeld The government interest was discussed in Part III of this opinion’s opening. This was required because the expressive conduct section was being used. United States v. O’Brien, which calls for an inquiry into the government’s interest, and mentioned that “‘judicial deference … is at its apogee’ when Congress legislates under its authority to raise and support armies.” The rest of the opinion (including the compelled speech, compelled hosting, and discussion) follows the First Amendment rules. West Virginia Bd. Of Ed. v. Barnette, Wooley v. Maynard, Giboney v. Empire Storage & Ice Co., PruneYard Shopping Center v. RobinsThis is true for all applicants, regardless of whether their applications are different in military recruitment. The same reasoning could be applied to the hypothetical requirements for colleges to allow military recruits to be recruited by the FBI and other nonmilitary agencies.

Even better, cases from later years have been consistently used Rumsfeld It’s not related to the military in any way, and there is no indication that it’s limited to cases involving military personnel. See, e.g., Janus v. AFSCME (2018); Expressions Hair Design v.  Schneiderman (2017); Agency for Int’l Dev. Alliance for Open Soc’y Int’l (2013); Sorrell v. IMS Health Inc. (2011); Nevada Comm’n on Ethics v. Carrigan (2011); Davenport V. Washington Educ. Ass’n (2007).

Another debate can be had about other aspects of the precedential force. RumsfeldYou can debate the question. Rumsfeld It was rightly decided. However, I disagree. Rumsfeld These two ways can limit your options.