Statement of HLS Lambda on Rumsfeld v. FAIR
Today the Supreme Court handed down its decision in Rumsfeld v. FAIR, ruling that the Solomon Amendment does not violate free speech protections by compelling law schools to host a discriminatory employer.
The Court’s opinion is a disappointment.The opinion concentrates on the technicalities and logistics of on-campus recruiting in order to avoid deciding thornier free speech issues. The Court asserts that law schools are not forced to adopt the military’s message through on-campus recruiting and thus suffer no harm to their free speech rights, yet the opinion studiously avoids discussing the harm to free speech brought about when law schools are compelled to invalidate and render meaningless non-discrimination policies meant to protect their students. These policies are not empty words that can freely be ignored, but an expression of law schools’ commitment to equality - not only for gay and lesbian students, but for students of all races, religions, genders, and nationalities.
While the Court’s opinion is a setback, it should do nothing to change law schools’ commitments to protecting their students from discrimination. Unless University administrators are content with having the law school’s non-discrimination policy be rendered meaningless for the indefinite future, they will be proactive in exercising their free speech rights and working to develop new strategies for combating discrimination on campus.
Ultimately, the heart of this issue is not the Solomon Amendment itself, but rather another law, a law wrong on both a moral and pragmatic level. The military’s “Don’t Ask, Don’t Tell” policy excludes qualified gay and lesbian men and women from serving their country at a time when the nation may need them the most. Numerous opinion polls, by organizations ranging from Gallup to Fox News, have repeatedly shown that the majority of Americans believe “Don’t Ask, Don’t Tell” to be outdated and unwise. If the military truly wants to recruit the “best and brightest” students from the nation’s law schools, it would be better served to do away with its discriminatory hiring practices rather than compel law schools to accept them.
We believe the University should engage this wrong and throw its support behind bills such as the Military Readiness Enhancement Act, sponsored by Rep. Marty Meehan, D-Mass., and 109 co-sponsors, which would end the military’s discriminatory practices. If law schools cannot enforce non-discrimination inside their walls, they can work to end discrimination outside of them.