Rumsfeld v. Forum For Academic and Institutional Rights

[A18]

http://www.oyez.org/oyez/resource/case/1872/

Docket Number: 04-1152
Argued: December 6, 2005

The Solomon Amendment, 10 U.S.C. 983(b)(1), withholds some federal funding from colleges and universities that deny U.S. military recruiters the same access to students that other employers are given. The Forum for Academic and Institutional Rights challenged the law, arguing that it violated the schools' First Amendment rights to expressive association by requiring them to assist in military recruitment. The district court rejected the suit, but a Third Court of Appeals panel reversed. It held that, while the schools still had the right to forfeit funds so as to avoid unwanted endorsement of military policy under the amendment, forcing the schools to make such a decision was unconstitutional. Congress could not require them to forfeit a constitutional right in order to receive federal funds.

[nini2287]

Is this for public or private universities?

[True Federalist (진정한 연방 주의자)]

No.  By accepting federal funds the university becomes a state actor and thereby subject to restrictions on its activities.  What I do find objectionable in 10 U.S.C. 983 is that it requires them to hand over information such as names, addresses, and telephone numbers en mass that any reputable institution should not be handing out to any recruiters (unless the student has authorized such disclosure that is).  However, that was already in the law before the Solomon Amendment.  Actually, as far as my concerns go, the Solomon Amemdment is an improvement on what the law was as before it passed, the law required schools to provide on campus access to students by military recruiters, even if they provided no such access to any other recruiter.  Now it requires only that all recruiters be treated equally.

[Emsworth]

No. It is true that the government may not indirectly abridge the freedom of speech by denying funding that it would have otherwise granted. This, however, is not an issue of speech, but of military recruitment. The government is not attempting to censor any speech; rather, it is merely asking that, in return for federal funding, universities should allow military recruiters on their property.

It should be noted that the original grants of money are themselves unconstitutional. The power to fund universities is not enumerated in the Constitution.

By accepting federal funds the university becomes a state actor ...

I do not believe that this conclusion is constitutionally justified. Do poor people become state actors when they receive welfare?

[True Federalist (진정한 연방 주의자)]

It should be noted that the original grants of money are themselves unconstitutional. The power to fund universities is not enumerated in the Constitution.

"The Congress shall have Power To ... provide for the ... general Welfare of the United States" seems broad enough to support the constitutionality of Federal research grants.

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I do not believe that this conclusion is constitutionally justified. Do poor people become state actors when they receive welfare?
[/quote]

Yes.  I am a firm believer in the golden rule; he who spends the gold makes the rules.   Receiving money from the government is not a civil right.

[Emsworth]

"The Congress shall have Power To ... provide for the ... general Welfare of the United States" seems broad enough to support the constitutionality of Federal research grants.

The Framers were divided between two possible interpretations of the general welfare clause: one proposed by Madison, and another by Hamilton. Neither interpretation seems to justify giving money to universities.

Madison argued that the general welfare clause was not an indepdent source of power. Rather, the term "general welfare" was (according to him) merely a synonym for the enumerated powers considered collectively. Thus, the general welfare clause did not confer any new authority, but merely functioned as a limitation on the power to tax. Under this interpretation, it is clear that federal research grants are not constitutionally permissible.

Hamilton argued that the general welfare clause was indeed an indepdent source of federal authority, over and above the enumerated powers. However, he did not believe that the spending power was unlimited. He argued: "The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this--That the object to which an appropriation of money is to be made be General and not local." Arguably, education is a purely local rather than "General" (i.e., federal) issue.

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I agree, but I would not characterize one who receives money as a "state actor." I was under the impression that this term is normally reserved for government itself, and not applied to private entities who are not acting on the government's behalf.

[True Federalist (진정한 연방 주의자)]

"The Congress shall have Power To ... provide for the ... general Welfare of the United States" seems broad enough to support the constitutionality of Federal research grants.

The Framers were divided between two possible interpretations of the general welfare clause: one proposed by Madison, and another by Hamilton. Neither interpretation seems to justify giving money to universities.

Madison argued that the general welfare clause was not an indepdent source of power. Rather, the term "general welfare" was (according to him) merely a synonym for the enumerated powers considered collectively. Thus, the general welfare clause did not confer any new authority, but merely functioned as a limitation on the power to tax. Under this interpretation, it is clear that federal research grants are not constitutionally permissible.

Hamilton argued that the general welfare clause was indeed an indepdent source of federal authority, over and above the enumerated powers. However, he did not believe that the spending power was unlimited. He argued: "The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this--That the object to which an appropriation of money is to be made be General and not local." Arguably, education is a purely local rather than "General" (i.e., federal) issue.

If the funds were earmarked for specific schools, I'd agree with you, but not for funds that are generally available even if each individual grant happens to be "local".

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I agree, but I would not characterize one who receives money as a "state actor." I was under the impression that this term is normally reserved for government itself, and not applied to private entities who are not acting on the government's behalf.
[/quote]
I doubt if the government would like for the entities receiving research money to not do the research their grant proposal called for.  Rather they are acting to do research on the government's behalf.  That basically means that the restrictions on what the government can tell them to do are a combination of they can't have them do things direct employees couldn't do and whatever would be politically unpalatible.  The Federal government has a rather broad grant of constitutional powers, a grant I would like to see narrowed and concentrated in the legislative branch rather than either of the other two branches, but to deny over two centuries of Constitutional interpretation "is now water over the dam."