The Solomon Amendment Case Revisited

We've had discussions before concerning Rumsfeld v. FAIR, the Supreme Court case on whether law schools have a constitutional rigt of expressive association to refuse to allow military recruiters (because of the military's ban on gays) without being denied federal funding.  Our discussions (for example, here, here, here, here, here, and here) have mostly concerned the relation between the issues in this case and important matters of subsidiarity.  Georgetown Law School has collected Supreme Court briefs and other filings in the case here.  Briefs of the government (petitioner) and its supporting amici have all been filed, and briefs of the law-school consortium (appellee) and its supporting amici are just appearing.  Oral argument is set for December 6.

I've previously asserted that the Court should recognize a distinction between the rights of private law schools and the (much lesser) rights of state law schools.  The theory is that while private entities are classic mediating institutions and enjoy constitutional rights of association, state entities are generally the targets of constitutional limitations rather than the beneficiaries, and because of their favored status in receiving compulsory-tax-supported funding, they are not classic mediating institutions either.  That constitutional distinction is argued in the amicus brief of the Christian Legal Society and Alliance Defense Fund (supporting neither party in the case, since FAIR includes both private and state law schools).  (I participated in a few discussions concerning the content of the brief but played no role in writing it.)

Tom B.