Does Today's FAIR Decision Implicate Christian Student Group Cases?

Today in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the U.S. Supreme Court unanimously upheld the Solomon Amendment (10 USC 983 (b)). That law denies federal funding to universities whose law schools exclude military recruiters because the military discriminates on the basis of sexual orientation. While not the main thrust of the case, the Court's opinion (by Chief Justice Roberts) does seem to have implications for the long-running dispute between a number of Christian student groups and universities over formal recognition of student groups that limit membership on the basis of religion or on the basis of sexual activities that violate "Biblical" norms. At issue is whether requiring law schools or universities to recognize groups that discriminate on the basis of religion infringes the school's right to take a stand against discrimination. The argument is based largely on a 2000 Supreme Court case, Boy Scouts v. Dale, that held that the Boy Scouts' freedom of expressive association was violated by New Jersey's public accommodations law which required the Scouts to accept homosexual scoutmasters.

In today's decision, the Court rejected this argument in the context of the Solomon Amendment. It said:

According to FAIR, law schools' ability to express their message that discrimination on the basis of sexual orientation is wrong is significantly affected by the presence of military recruiters on campus and the schools' obligation to assist them....

The Solomon Amendment, however, does not similarly affect a law school's associational rights. To comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore "associate" with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students-- not to become members of the school's expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school "'to accept members it does not desire'".

This language might be read to suggest that placing a school's imprimatur on a student group by formally recognizing it does make it one of the "members of the school's expressive association", and forcing the school to recognize it would therefore unconstitutionally impair the school's associational rights.