Arguing with classmates today about FAIR v. Rumsfeld, it finally occurred to me why I find it so hard to get my head around the unconstitutional conditions doctrines. (I say doctrines because there are so many different rules for different situations, and sometimes even different rules for the same situation.) At bottom, most attempts to develop such a doctrine (rather than to give up entirely) require some sense of how far is “too far”, i.e. what choices are not “really” choices. But this requires a general sense about what results are simply unthinkable which, as experience has shown us, are usually contested concepts.
So, for example, when I suggested that it was not out of the question for Yale Law School to decide to refuse federal money and stick to its non-discrimination principle, I was roundly yelled at. Yale’s annual receipts from the federal government amount to less than 5% of its endowment, and to me it is not obvious why Yale couldn’t cut other programs, or start spending down the sacred endowment, or spin the law school off as the separate institution it once was (The New Haven Law SCchool), or eliminate the biology department or the medical school.
Now it might well be true that these things are all really awful ideas, and that doing all these things is far worse than giving in to the military, and so on. But to me the possibility that Yale could decide to turn into Princeton or Hillsdale seems not-out-of-the-question if the stakes were high enough, and to other people in the room it was. And given the inability to agree on even the basic limiting cases, it is unsurprising that we are therefore unable to agree on a doctrine that can resolve concrete cases in genuine dispute.
At any rate, a similar sort of disconnect seemed to come up in the oral argument when Justice Roberts suggested that the reason that the military’s presence on campus diluted Yale’s non-discrimination message was because Yale was willing to take the money. Now I think this quip is a little unfair, since the problem is largely that the law school is not willing to jeopardize the funds of the other parts of the university, but I do think the intuition underlies at least some people’s lack of sympathy for the law schools.
Finally, I wanted to point out this colloquy from the oral arguments in Boy Scouts v. Dale (which I blogged previously at Crescat):
MR. DAVIDSON: With respect to Government sponsorship, everybody who sponsors a Scout troop signs on to follow Scouting’s values and procedures. If, for political or legal reasons, they shouldn’t be doing that, their remedy is to not continue to support Scouting.
…
QUESTION: Well, no one thinks that–or has suggested that this makes you a State actor, so I think the Fourteenth Amendment is out, but just as a matter of New Jersey law it would seem to me that the schools and the fire departments, to comply with the New Jersey law as interpreted by the supreme court, would have to sever the relation. Perhaps I’m wrong.
MR. DAVIDSON: Justice Kennedy, that may well be.
…
QUESTION: Anyway, your point is if Government giving any assistance to the Scouts is a problem, you’d rather, no thank you, not have the assistance than have to change your policies.
MR. DAVIDSON: Right. The Scouts have said many times that their policies are not for sale, and if it costs the sponsorship, well that’s–so be it.
Posted by Will Baude on December 6, 2005 at 11:39 PM
Comments
This wasn’t in class, this was in the “Supreme Court” reading group that I’m a participant in, in which we read, discuss, and predict a different pending case in the OT 2005 every week.
The yelling really fit with the social norms of the discussion, which is a relatively unstructured debate with four or five rather aggressive participants (of which I am usually one) and another four or five quieter ones. When the quieter ones speak up the room tends to make room for them, but when people like me, who talk a whole lot, do the talking, people are a little more likely to cut me off.
That said, I thought my claims were unremarkable, was sorry too, and I do like the place.
Posted by: Will Baude | Dec 8, 2005 9:20:05 AM
Will, you write: “So, for example, when I suggested that it was not out of the question for Yale Law School to decide to refuse federal money and stick to its non-discrimination principle, I was roundly yelled at.” I’m really sorry to hear this. I guess I don’t think it reflects too well on Yale Law School — and I really like the place — that people “yell[]” at those who [in class?] propose such (frankly) unremarkable claims. Are things really that uncivil? Or are FAIR discussions the exception? Just curious . . ..
Posted by: Rick | Dec 8, 2005 7:18:07 AM
The Dale exchange simply shows that the Boy Scouts have more guts and integrity than Yale and the other law schools.
For some of us, that’s not at all surprising. But it’s a pretty stark example. If everyone else were as willing to refuse funds — esp. whole States and local govts., and local school districts — then the Spending Power would not be as all-powerful as it is now.
Posted by: just me | Dec 7, 2005 12:22:40 PM
(That’s “‘greater includes the lesser'”)
Posted by: Will Baude | Dec 7, 2005 12:08:04 PM
Surely one can’t just give up on the whole enterprise. The tradition of occasionally but inconsistently rejecting “greated includes the lesser” arguments in constitutional law dates back basically to the founding. But I do think the problem is even more intractable than it appears.
Posted by: Will Baude | Dec 7, 2005 12:05:34 PM
Do you give up on the whole project of unconstitutional conditions? Would conditioning federal funds on the absence of on-campus war protests be unconstitutional or just misguided?
Posted by: ac | Dec 7, 2005 11:31:36 AM
What troubles me in this case is that this isn’t about the Solomon Amendment, it’s about Don’t Ask Don’t Tell (DADT). It’s an attempt to indirectly challenge a policy they don’t like. And despite the characterization of DADT as a “militar policy,” DADT is the law; it was passed by Congress, it was signed by President Clinton, it is codified at 10 U.S.C. §654, and the military is obligated to follow it, like it or not. DADT isn’t a military policy, it is Congress’ policy – the same Congress from which FAIR is perfectly happy to take money.
If FAIR really wanted to be honest about this, it would exclude members of Congress from campuses, and refuse to take the money of an employer – Uncle Sam – which mandates the discriminatory practises of which they’re complaining. If they did this, they would have a shred of credibility, but that, of course, isn’t what they’re asking. They want their cake and to eat it; they want to keep this tainted money, but remove the strings which are attatched, and in service of this they float an extremely tenuous overextension of free association to invoke unconstitutional conditions.
This is a no-brainer case. Nobody seriously believes that the university is associating itself with, or endorsing the business practises of, employers it lets on campus, and even the colleges did believe this, they are under zero obligation, none whatsoever, to take the money and therefore be subject to the restrictions.
Posted by: Simon | Dec 7, 2005 10:22:03 AM
Will– It’s Chief Justice Roberts! (His predecessor was a stickler on this matter.)
Posted by: AnonLawProf | Dec 7, 2005 1:29:57 AM