Courting A Controversial Case On Campus

Much is being made – for obvious reasons – of the FAIR v. Rumsfeld case now being considered by a seemingly skeptical U.S. Supreme Court. In short, it’s about the government’s right to condition its funding to universities on the basis of military recruiters having equal access to students.

This goes for undergrads as well as law students. It’s also about a school’s prerogative to deny military recruiters the same access that all other recruiters get – and still expect the same federal largess they’ve long become accustomed to. The Feds’ financial support to higher education now exceeds $35 billion annually.

And, in the verbalized view of new Supreme Court Chief Justice John Roberts, it’s also about “the right in the Constitution to raise a military.”

The genesis of the case is the 1994 Solomon Amendment, which gives the government the right to withhold funds when schools deny such access. The real target of the case is the higher ed-hated “Don’t Ask, Don’t Tell” military policy, which has been – like it or not — the law of the land since 1993.

However this shakes out – couched in language referencing discrimination against gays and bizarre spins on free speech and academic freedom – there are interesting extralegal issues at play.

For openers, shouldn’t an all-volunteer military have direct access to as wide a recruiting base as possible? It’s hardly an egalitarian fantasy, but shouldn’t it be able to make its pitch in front of a demographic that is not mostly minorities and na

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