Amicus the American Civil Rights Union In Support of the Government, In <em>Rumsfeld v. F.A.I.R</em>

By Harold Eugene Oliver III, George Washington University Law Schoolp>
Amici American Civil Rights Union (ACRU) put forth the following the following arguments in support of the Government: (1) Does this Court have subject matter jurisdiction to decide this case on the issue raised by the Plaintiffs at trial, Respondents here?; (2) Did the Court of Appeals err by treating this as a First Amendment case, rather than recognizing that it is, in fact, a spending powers case?; (3) Did the Court of Appeals err by concluding that the Respondents suffered any actionable harm in this case which can overbalance the harm to the US military?; and (4) Did the Court of Appeals err in other ways whose cumulative effect is that its judgment should be reversed and remanded?#160;
The American Civil Rights Union (ACRU) is writing this amicus brief on behalf of the petitioners in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR).#160; The ACRU is a educational and legal charity dedicated to advancing civil rights and addressing basic constitutional issues.#160; In this brief, they present four major issues in support of Rumsfeld's case: 1) the Court lacks subject-matter jurisdiction, 2) the Court of Appeals erred in considering this case a First Amendment issue, 3) the Court of Appeals erred in concluding that the harms suffered by FAIR outweighs the harm to the US military, and 4) the Court of Appeals erred in ways that should result in this case being reversed and remanded to the lower court.#160;
While subject-matter jurisdiction was not a question brought up in the Supreme Court's grant of certiorari, subject-matter jurisdiction is an issue that can be brought up at anytime.#160; The ACRU contends that a party must establish some "specific injury" above and beyond an average complaint and that FAIR did not meet this requirement.#160; Their claim is that FAIR did not suffer a specific injury because there is no evidence that any individual suffered either directly or indirectly from the military's "don't ask, don't tell" policy.#160; While law schools have claimed that they have had to adjust their non-discrimination policies as a result of the Solomon Amendment, the ACRU argues that the federal government did not force them to change their policies and the fact that the schools voluntarily self-inflicted the "injury" by changing their policies is not grounds for federal subject-matter jurisdiction.#160; Thus, according to the ACRU, the court should dismiss this case for lack of subject-matter jurisdiction.
The ACRU's second major contention is that Rumsfeld v. FAIR is not a First Amendment case?as the Court of Appeals had believed?but a Spending Powers case.#160; The Spending Powers clause concerns Congress's ability to regulate public spending.#160; The ACRU compares withdraw of federal funding to universities that do not allow on-campus military recruiters to the legislation which withheld federal funding for states that did not raise the drinking age to 21 (South Dakota v. Dole) or those that did not lower the speed limit on highways to 55 MPH (Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989), cert denied. 493 US 1070 (1990)).#160; These cases?when combined with the tougher constitutional requirements of the Tenth Amendment (regarding state's rights) that was applied?leads the authors of the brief to believe that Rumsfeld v. FAIR should be considered a Spending Powers case and, as such, constitutional.#160; Lastly, the ACRU discusses the majority opinion in Grove City College v. Bell (where the federal government tried to force Grove City College to abide by the nondiscrimination provisions of Title IX) in which the relationship between the First Amendment and Spending Powers with regards to institutions of higher learning.#160; It stated that Congress could attach conditions to the disbursement of federal funds and that educational institutions did not have to accept such funds?nor would such restrictions violate the First Amendment rights of either the school or its students.#160; As a result of this precedent, the ACRU argues that FAIR is not entitled to relief in this case.
The third issue in ACRU's brief is that the Court of Appeals erred in its conclusion that FAIR suffered a harm that overbalanced the harm suffered by the military as a result of this decision.#160; They argue that this decision will hamper the military's recruiting efforts during a "war" in which it has been relying entirely on an all-volunteer force.#160; After showing that this current military conflict is tantamount to a declared war, the authors argue that since FAIR suffered only a self-inflicted harm and the military has been impaired during a time of war the injunction that the Court of Appeals granted to FAIR should have been denied.
The fourth and final issue that the ACRU brings up in this brief is that the Court of Appeals made numerous smaller errors which leads to its conclusion being in error.#160; The most important of these errors to the ACRU was the court's handling of FAIR's tactic to seek a First Amendment ruling on the military's discriminatory policies towards homosexuals.#160; Precedent has ruled that the military's ban is constitutional and FAIR is engaging in a results-oriented approach. #160;They suggest that the court's ruling on this issue in favor of FAIR suggests that they find the Solomon Amendment to be terrible public policy?a belief that ACRU argues should be remedied by the legislative branch, not the judicial.#160; Second, they contend that FAIR's "freedom of association" rights were misapplied by the Court of Appeals.#160; ACRU argues that the schools in question were not forced to associate with the military?they could refuse and not receive federal funding.#160; Additionally, just because the military recruits on campus?like a lot of major corporations?does not mean that the school is any more associated with the military as it is with the major corporations who may engage in scrupulous behavior.#160; Nor has any student been forced to associate with the military or any other organization with which they disagree with on a particular issue.#160; Their final and last argument is that law schools?like any other corporate entity?have no special First Amendment right to prevent those groups from appearing whom it is obligated to allow on its premises by federal law.
As a result of FAIR's lack of a specific injury that could justify a remedy from the courts and the aforementioned errors in the Court of Appeals' decision, the ACRU urges the Supreme Court to remand and reverse this case.