A Few Thoughts on FAIR

I promised a couple of thoughts on the FAIR decision yesterday.  I may be writing something for a particular journal (but it's not set in stone yet!  And I may have more thoughts than one article can contain!  Harvard etc., there's still time to secure my additional expert commentary!), so I won't say much here; in any event, I still have some more thinking to do about the opinion.  I will say that while I am not unduly concerned about the Court's failure to cite law review literature or foreign law, per Ethan's post below -- after all, much depends on whether such citations meaningfully use the cited literature and contribute to a broader conversation, or whether they are mere window dressing -- I do think Chief Justice Roberts missed the chance to cite an excellent discussion of some of the issues raised by the case.  But I forgive him; his tenure has barely begun and he needs time to grow into the office. 

There's a lot to be said about the FAIR opinion, and my squib here hardly addresses either the whole opinion or all of my own thoughts about it, present or future.  Along with everyone else, I'm not surprised by the outcome, and even given my own normative druthers (about the law -- not about the policy issues raised by either DADT or the Solomon Amendment itself), which are not necessarily the same as prevailing doctrine, I think the case probably came out right.  But although I think the case achieves a reasonable outcome, I am not sure I am entirely supportive of the Court's reasoning.

What I find fascinating about the opinion is that it involves what I would call "dueling deferences" -- or perhaps, given the count that follows, "competing deferences."  By my count, the FAIR opinion ultimately involves a contest between three possible areas of deference: 1) deference to Congress's "broad authority to legislate on matters of military recruiting"; 2) what some have called "Dale deference," after the suggestion in Dale that we should defer to an expressive association's own view of the nature of its association and whether its associative interests are being interfered with; and 3) what I would call "Grutter deference," or the deference the Court has paid from time to time to universities' own understanding of their academic mission and what it requires, building on a quasi-constitutional respect for academic freedom. 

It seems to me the Court resolves this contest among principles of deference by accepting (1) -- I might say strongly accepting it, but I'm not sure how much real work is done by this principle in the opinion -- and giving lessened weight to (2), and largely ignoring (3).  An opinion fully respectful of the role of universities as independent intermediary institutions might have given more weight to deference principles (2) and (3) -- and since I favor that institution-based approach to the First Amendment, I regret that the Court did not say more about either of these bases for deference to vital speech institutions. 

Note that even if the Court did give greater deference to the universities, under either Dale or Grutter, FAIR still could have lost; I am not suggesting, for one thing, that principle (1), combined with the Spending Clause, might not have won the day.  I would hate for anyone to misunderstand me on this point.  I am simply saying I think that principles (2) and (3) are both more important, descriptively and normatively, than the Court suggested, and I am sorry the Court did not give them greater consideration.

Finally, it seems to me the Court's discussion of the ways in which recruiting is nowhere near as central to the academic role of the law schools as the FAIR plaintiffs suggested is quite correct.  And I would add that one reason the law schools did care as much about this issue as they did is that they were "encouraged" to do so by the AALS -- an awkward fact for the law schools to acknowledge, given that it casts some doubt on the idea that opposition to the military recruiters' presence was simply a result of some internal decision by individual law schools about what their academic mission required.  The Court's discussion comported with my own common sense intuition about law schools' sense of their own mission.  But then, I might have had equally common-sense-oriented thoughts about how central sexual orientation was to the Boy Scouts' mission in Dale, and yet the Court largely refused to go down that road in that case.  The question in both cases is how much the Court should take it upon itself to evaluate these expressive groups' views, and how much it should defer to the groups' own views.  Although I must think further about this, I am not sure the Court struck precisely the right balance here.  So I am inclined at this point to think that the result is FAIR but the reasons may be somewhat lacking.