November 29, 2005
"An unremarkable use" of the spending power or "a core violation of the First Amendment"?
Yale lawprof William Eskridge and George Mason Dean Daniel Polsby are debating about the Solomon Amendment case -- FAIR v. Rumsfeld -- which raises the question whether the federal government can require universities, as a condition of receiving federal funds, to give military recruiters the same access given to other employers. The Supreme Court is hearing argument in the case next week. Polsby says it's "an unremarkable use of Congress’s Spending Power, while Eskridge sees "a core violation of the First Amendment."
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Fairl y decent Boston Globe piece on this the other day, discussing how the power under which the Solomon Amendment would be upheld (Spending Clause) is similar to that that underpins Title 6 of the Civil Rights Act of 1964 and the famous Title 9 of the Education Amendments of 1972. A little bit of discussion on how some liberal lawyers would like to strike down Solomon but not the others, but are worried about consistency and the possibility of all being struck down.
I'm also annoyed by this other organization calling itself FAIR. Oh well
Thacker has a point here. Bernstein at Volokh made the same one yesterday that the Supreme Court has approved tying spending to civil rights laws, and arguably the President's ability to wage war is of a higher priority than this.
If the federal government can't require strings attached to spending money back at the state level, then they will be severly hampered in their ability to effect social change.
Gee, if that were the result of a ruling against the federal gov't in this case then, Yipee!
All this 'unremarkable' use of the spending power of the federal gov't has always seemed to me somewhat out of bounds of the constitution as written.
No one wants to upset the apple cart too much cause the situation suits federal, state and local gov'ts. All these strings from the larger authority to the lower gives the lower authorities less responsibility when things go bad, plus it allows the higher authorities to take some of the credit when things go good. The by-producting of all this is greater inefficiencies and larger bureacracies.
The courts should decide this case based on the constitution, not on what has been politically expedient for the past 100 years or so. This could be interesting.
One question that I have about this case is that as far as I can tell, it is mostly being brought by law school faculty, who legally don't run the schools.
To the extent that this is true, their 1st Amdt. rights would seem to be somewhat weak here. Much stronger here I would think would have been the rights of private schools, litigating as such, contesting the tying of indirectly given federal student aid to civil rights provisions (including, ultimately, requirements that statistics be kept by the schools on race, gender, etc.)
In the case of law faculty, they can just avoid those areas of school where ROTC recruiters meet with students - as most do already. Wheres with the private schools could not avoid the federal strings.
The UW Law School is a plaintiff in the FAIR case, is it not?
Eliza: I think it's the law faculty, not the school as an entity. There was some discussion of whether there could be such a party as "the faculty," and I don't know how much that was questioned in the case or, if it was, how that was resolved.
I've found both of them totally underwhelming thus far.
You want a good debate on the case? Read the briefs.
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