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One of the more interesting cases on the Supreme Court’s docket this term is Rumsfeld v. Foundation for Academic and Institutional Rights Inc. (FAIR). The FAIR litigation, a First Amendment challenge to the so-called Solomon Amendment, pits the nation’s law schools against the armed forces in the context of the latter’s efforts to hire attorneys-except for gays-for the Judge Advocate General Corps. For both sides, the stakes are high. Enacted in 1994 and later amended, the statute mandates that virtually all federal funds be withheld from institutions of higher education if they, or a “subelement” thereof, fail to give the military access for recruiting purposes “in a manner that is at least equal in quality and scope” to the access provided other employers. 10 U.S.C. 983(b)(1). The law schools do not wish to do so because of their stated opposition to anti-gay discrimination. Although facially involving only the government’s and universities’ rights, this litigation exposes the deep fault lines in the “don’t ask, don’t tell” policy. Thus, implicitly, it raises issues of gay rights too and, most fundamentally, the question of whether the United States will persist in denying a class of its citizens the opportunity to serve their country “in a manner . . . equal in quality and scope” to that accorded Americans in general. The controversy arose because, starting in the 1970s, law schools expanded their anti-discrimination policies to cover sexual orientation, a move formalized in 1990 by the American Association of Law Schools. As a result of the armed forces’ ban on gays, some schools started to bar campus access to military recruiters. In 1994, representatives Gerald Solomon, R-N.Y., and Richard Pombo, R-Calif., co-sponsored a law punishing such refusals with loss of funding. Deploring the affront to “the honor and dignity of service,” they desired to “send a message over the wall of the ivory tower of higher education” that “starry-eyed idealism comes with a price.” For a while after the bill’s passage, an uneasy compromise prevailed: Placement offices offered partial cooperation, such as letting military personnel interview at Reserve Officer Training Corps offices on campus, but not including them in other activities. After 9/11, however, the government rejected ameliorative measures. In order to preserve their federal aid, the schools ceased to make such distinctions; yet pressure mounted on them to resist. FAIR contends that the government’s demand for law school assistance, in effect, forces universities to deliver the armed forces’ “message” about the acceptability of bias against gays and, worse, impedes the schools’ ability to propound their own opposing message through action rather than mere hypocritical-seeming words-thereby infringing on their rights to be free from compelled speech and to expressive association. They also argue that insistence on accommodation of the military on pain of deprivation of millions of dollars for noncompliance amounts to an unconstitutional condition, a further violation of the First Amendment. As amici, the American Civil Liberties Union and others add that the law impermissibly discriminates based on viewpoint since it exempts schools that disapprove of military employment for pacifist reasons. The government counters that Congress’ powers to support the armed forces, “provide for the common Defence and Welfare” and enact “laws necessary and proper to effectuate its Spending Power” justify the Solomon Amendment. It stresses that if the schools do not wish to cooperate, they do not have to: They can simply decline the funding-put their money where their mouths are. In getting the court to accept its position, FAIR faces an uphill road. Congress has more leeway to administer its spending programs than to regulate directly. Traditionally, deference to the military is strong. And even liberals may not wish to expand the associational loophole to the enforcement of civil rights laws. One elegant solution Happily, the court can avoid the constitutional morass by adopting the statutory interpretation advanced by numerous Harvard Law School and Columbia Law School professors (myself included). They contend that the law permits federal funding at these schools because the schools, in fact, do treat the military identically to other employers: They all must abide by the anti-discrimination rule. The law does not purport to give the military recruiters preferential status. Whatever the outcome of this case , Congress should now focus on second-class treatment accorded by, not to, the military. Just honor equal protection-replace “don’t ask, don’t tell” with “don’t exclude”-and a lot of litigation, and embarrassing publicity, will disappear. Vivian Berger, an NLJ columnist, is a professor emerita at Columbia Law School.

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