More on Military-Recruiting Case and Subsidiarity

I haven't read much of the blogosphere commentary on the military-recruiting case in which the Third Circuit held that Congress could not withdraw funds from law schools that refused to give equal treatment to military recruiters.  But my initial take is different from both Rob (who argued that the decison properly bolsters subsidiarity by protecting institutions against top-down congressional policy) and Rick (who argued, among other things, that the government should be able to fund largely as it wishes).

My initial take rests on a distinction between private law schools and public law schools:  the plaintiff group included both, but the Third Circuit (so far as I have seen) made no distinction between them.  If we care about subsidiarity and the practical ability of intermediate communities to choose with whom to associate, then I think that private institutions do need protection from rules that threaten them with loss of important funding unless they agree to give up their power to decide with whom to associate.  I have seen many cases in which religious schools and social services face a Hobson's choice concerning funding:  accept the government's objectionable and institution-altering conditions in order to get funding, or refuse the funding and suffer significant marketplace losses to their competitors who benefit from government support.  I've argued here that institutions should not have to face such a choice, if we really care about preserving a pluralistic set of institutional voices in education, social services, and so forth.

But as to public law schools, the calculus seems quite different.  Private higher education institutions, as private actors, have associational and academic-freedom rights against the government.  Public institutions, by contrast, are themselves government actors and are primarily limited by, rather than protected by, constitutional rights of expression, association, and academic freedom.  This is so not only because public higher education entities are formally arms of the state, but also because they are subsidized by the state and thus reflect the exercise of state taxing and spending power in the market for higher education -- an exercise that can threaten rather than promote subsidiarity and a pluralism of voices.

There are a few Supreme Court decisions recognizing certain academic-freedom interests of public universities (e.g., Regents of Univ. of Michigan v. Ewing (1986); Board of Curators v. Horowitz (1978)), but these have been largely limited to core matters of academic discretion such as the academic evaluation of faculty and students.  Recognizing a broad academic-freedom-type right of association for public universities might suggest, for example, that such a university could express its academic values by excluding certain student groups whose viewpoints it dislikes from meeting on campus -- an exclusion that would violate numerous decisions such as Widmar v. Vincent (1981) and Rosenberger v. Univ. of Virginia (1995).  I am doubtful that the core right of academic discretion and evaluation -- which I think (tentatively) is the only constitutional right that a public university should be able to assert -- should extend to decisions about excluding certain recruiters from a wide-ranging general recruiting program.  At the very least, the Supreme Court ought to ask quite different questions about the public law school plaintiffs than the private law school plaintiffs.

Tom Berg