Subsidiarity and Protest: The Law School’s Mission in Grutter and Fair

Peter Widulski, Subsidiarity and Protest: The Law School’s Mission in Grutter and Fair, 42 Gonz. L. Rev. 415 (2007).

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I. Introduction

Subsidiarity is a principle of social and political philosophy first articulated in papal encyclicals[1] and is now a constitutional principle of the European Community.[2] Among other things, the principle counsels that higher levels of government should, where possible, avoid hindering activities serving the public and private good undertaken by lower levels of government and by non-political associations.[3] For the last ten years or so, constitutional scholars have debated whether—and if so, to what extent—the principle is embodied or reflected in the United States Constitution, in Congressional legislation, and in decisions of the United States Supreme Court.[4]

In its cases on affirmative action in professional schools, the Supreme Court has issued opinions that, while not explicitly invoking the principle of subsidiarity, undertake analyses that reflect subsidiarity concerns.[5] In Regents of the University of California v. Bakke[6] and Grutter v. Bollinger,[7] the Court confronted challenges to race-conscious admissions programs that professional schools instituted for reasons they thought served their students and the nation. Thus, these cases posed the question of whether the Constitution’s Equal Protection Clause[8] prohibited these schools from undertaking activities that were arguably part of their mission and benefited the private and public good.

Justice Powell’s decisive opinion in Bakke and the Court’s majority opinion in Grutter employed concepts central to subsidiarity analysis in their judgments. Both opinions acknowledged the mission of professional schools and found that an admissions program grounded in the goal of diversity was important to this mission.[9] Both opinions also found that the diversity goal served the public good by providing significant benefits not only to students, but to the nation.[10] And both opinions, in applying the country’s fundamental law, accorded deference to the professional schools’ academic judgment in holding that a university’s interest in a race-conscious admissions program was compelling for purposes of Equal Protection Clause analysis.[11] In according deference to an institution’s mission that serves the public good, these opinions reflect subsidiarity concerns. %CODE2%
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However, in its opinion last term in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR),[12] the Court rejected the mission-related claims of an association of law schools and accorded no deference to the law schools’ missions. The FAIR case involved a challenge to enforcement of the Solomon Amendment, which denied large portions of federal funding to academic institutions refusing to comply with the Government’s requirements relating to military recruiting on campus.[13] The associated law schools objected to these requirements because of the military’s policy forbidding homosexuals to openly serve.[14] Despite the fact that FAIR, representing the protesting law schools, argued that this protest was based on an anti-discrimination policy central to the law schools’ missions,[15] the Supreme Court unanimously rejected this challenge.[16]

Thus, FAIR raises the question of whether the Court’s decision must be read as implicitly repudiating the subsidiarity concerns reflected in Justice Powell’s opinion in Bakke and the Court’s majority opinion in Grutter. In this article, I argue that because of the differences in the litigation contexts in these cases, that conclusion is unwarranted. Unlike in FAIR, in Bakke and Grutter the law to be applied and the arguments made by the professional schools provided the Court with a possibility—which it seized—to acknowledge the schools’ mission, accord deference to it, and find that this mission served the public good. Additionally, in these two cases Justice Powell and the Grutter majority were able to invoke the First Amendment’s concern for academic freedom to support their conclusions that student body diversity was important to the schools’ mission and that this diversity served the public good. These factors and the law schools’ ability to argue that their admissions policies served national goals diminished the difficulty of coordinating the Law School’s policy with the rest of society and with the law.

On the other hand, FAIR’s opportunity to argue the relevance of the law schools’ mission to the issues before the Court was significantly diminished by the context of the litigation. In FAIR, specific rights doctrinally defined in the Court’s First Amendment jurisprudence were crucial to the litigation. FAIR had to make the best case it could that these rights protected law schools in their opposition to the Solomon Amendment, while at the same time situating law schools among other bodies such as the Boy Scouts, public utility companies, and shopping centers[17] that sought protection under these doctrines.[18]

In appealing for protection under these specific rights, FAIR argued that the law schools’ position was based on goals related to the law schools’ mission.[19] FAIR also invoked the concept of academic freedom and the Court’s opinions that relied on this concept.[20] But, given the importance of the specific rights at issue, it discussed academic freedom only as a “backdrop”[21] to its arguments. Moreover, the law schools’ stance of protest against military policy on an issue subject to “raging national debate”[22] constrained FAIR’s ability to argue that the law schools’ protest significantly benefited the public good. And the fact that Congress passed the Solomon Amendment to aid military recruiting presented FAIR with a rival—Congress—for the Court’s deference and made coordination of the law schools’ stance with the law and military policy particularly difficult. Because of these factors, this paper argues that the Court’s opinion in FAIR cannot be read as repudiating the subsidiarity concerns reflected in Grutter and in Justice Powell’s Bakke opinion.

As background, Part I provides a brief exposition of the principle of subsidiarity and its application to the mission of education. The principle is grounded in the thesis that the good of the individual cannot be fully achieved without participation in associations that promote the good of their members while also serving—or at least not disturbing—the public good. Accordingly, in enforcing its own mandates political authority should, to the extent possible, avoid undermining activities of intermediary associations consistent with their function or mission. However, the political order has its own responsibility to coordinate the activities of any one association with the actions of the rest of society and with a view to the overall common and public good.

While the responsibility for an educational mission is shared by parents, educational institutions, and the State, the subsidiarity principle still applies. Of particular importance in the present context, where an institution of higher education has taken the initiative to promote the good of its students and the public good, political authority should accord appropriate deference, while retaining responsibility for coordinating the institution’s proper work with the social order and with a view to the public good.

As preparation for comparative consideration of the extent to which the Supreme Court’s opinions in Grutter and FAIR reflect subsidiarity concerns, Part II examines Justice Powell’s opinion in Bakke. There Justice Powell gives the concept of the academic mission fundamental importance. Justice Powell finds, in applying the Equal Protection Clause, a contextual opportunity to invoke the concepts of the academic mission and of the academic freedom supporting this mission in ways not argued by the professional school whose admissions policy was challenged in the case. On the basis of this support, he holds that the interest of academic institutions in a diverse student body is compelling for Equal Protection analysis. But he also critically employs the concept of the academic mission as a conceptual tool in determining that some goals proffered by an academic institution are not compelling because they are not within the scope of the academic mission.

With Justice Powell’s judgments as background, attention turns to a comparative examination of subsidiarity concerns in Grutter and FAIR. This analysis focuses on two important subsidiarity concepts: the concept of mission (Part III) and the concept of the public (or common) good served by a subsidiary institution (Part IV). Because the role of the First Amendment in these two cases is related to the subsidiarity analysis, this role also requires comparative analysis (Part V).

In Part III, attention is focused on the subsidiarity concept of mission as argued by the academic parties and treated by the Court in Grutter and FAIR. In its brief in Grutter, the University of Michigan Law School (“Law School”) relied on Justice Powell’s opinion in several important respects, most notably in stressing the importance of its mission and arguing that its diversity admissions program was integral to this mission. In this respect, the Law School enjoyed the considerable advantage that the legal parameters of the case were essentially the same as in Bakke. The Court in Grutter endorsed Justice Powell’s analysis, accepted the Law School’s claims for its mission, and held in favor of the Law School.

The context of the litigation in FAIR, however, was substantially different in ways that diminished FAIR’s opportunities to advocate the law schools’ missions. While the Law School was able to argue that its mission-grounded admissions policy was consistent with federal law and policy, FAIR had to defend its member law schools in their stance of protest against federal law. In doing so, FAIR argued that the law schools’ stance was grounded in mission-related goals. But again, its ability to do so was constrained by its necessity to argue for application of specific First Amendment doctrines that did not provide the most advantageous opportunity to argue for the law schools’ mission. Furthermore, the fact that the Solomon Amendment was passed by Congress to support the military presented the law schools with a potent rival for judicial deference in the litigation. In addition, the Government’s amici argued that the academic mission was to provide a forum for the discussion of controversial legal issues, rather than in teaching a particular viewpoint as FAIR argued.

Part IV examines the opportunities provided to the Law School and to FAIR to argue that their respective policies benefited the public good. In this respect again, the Law School enjoyed the more advantageous position. Given the nation’s commitment to creating opportunities for minorities, the Law School was able to argue that its admissions program promoted cross-racial understanding and provided opportunities to minority students to achieve positions of social and political leadership, thus contributing to public confidence in the legal and political system. FAIR also argued that the law schools’ policy was important for training future leaders about the evils of discrimination, but this was a protest against military policy, which confronted the Court with a serious problem in attempting to coordinate the law schools’ stance with a law relating to military recruitment.

Part V undertakes a subsidiarity-focused view of the role of the First Amendment in these two cases. The merits of the Court’s decision in FAIR on specific First Amendment issues will not be examined here. Instead, attention will be focused on the First Amendment-related concept of academic freedom and the ways in which this concept supported, or failed to support, the position of the academic litigants. Despite the fact that the First Amendment was not explicitly at issue in Grutter, the Court endorsed Justice Powell’s reliance on academic freedom in Bakke and stated its own reliance on the related concept of educational autonomy to support its conclusion in favor of the Law School. On the other hand, while FAIR also argued for academic freedom as a backdrop to its specific First Amendment arguments, the Court rejected these arguments without acknowledging any relevance of academic freedom as support for the law schools’ position.

II. The Principle of Subsidiarity and the Mission of Education

As described by a writer who has thoughtfully reviewed its genesis and components, subsidiarity “is a principled tendency toward solving problems at the local level and empowering individuals, families, and voluntary associations to act more efficaciously in their own lives.”[23] While the principle was first enunciated in papal encyclicals and developed as a part of Catholic social teaching,[24] its meaning, value, and relevance to secular political arguments can be, and has been, appreciated and debated by non-Catholic thinkers and political leaders.[25] Its role in the American political order has been subject to numerous analyses,[26] and it has been incorporated as a secular constitutional principle of the European Union.[27]

The principle as originally articulated and developed is grounded in the individual human good. In a foundational statement of the principle’s basis and implications, Pius XI cautioned that “it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community . . . .”[28] Accordingly, philosopher John Finnis locates the “source” of that principle in the fact that the “[h]uman good requires not only that one receive and experience benefits or desirable states; it requires that one do certain things, that one should act, with integrity and authenticity . . . .”[29] Since an individual fully participates in human good only through his or her own actions, “one who is never more than a cog in big wheels turned by others is denied participation in one important aspect of human well-being.”[30]

Upon this basis, the principle teaches that “it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.”[31] As John Paul II once stated, “a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to co-ordinate its activity with the activities of the rest of society, always with a view to the common good.”[32] John Paul II thus implies that whether a higher-level community may appropriately interfere with the activities of a lower-level community depends on an evaluation of whether the lower-level community’s actions are pursuant to its proper functions and whether its actions serve the common good. The highest authority in the community necessarily and appropriately bears responsibility to assist and to “co-ordinate” the intermediary’s activities with the rest of society, “always with a view to the common good.”[33]

John Paul II’s reference to the function of an intermediary body is important in the current context because it correlates to a large degree with the concept of an institution’s “mission” in American parlance. Universities are prime examples of intermediary institutions having a function (education) that they and others speak of as their “mission.” Professional schools give particularity to such a mission through the training of, for example, doctors and lawyers.

John Paul II himself has employed the concept of mission broadly in the context of education and stated that while parents have a certain primacy in this area, they “share their educational mission with other individuals or institutions, such as the church and the state.”[34] While individuals, intermediary institutions, and the State all have responsibility for education, “the mission of education must always be carried out in accordance with a proper application of the principle of subsidiarity.”[35] As Finnis explains, one implication of subsidiarity in such complex situations is that “individuals and particular groups (this family . . . this university . . .) should have a certain autonomy, a certain prior concern and responsibility for their own particular good, their own particular interests or specialty.”[36]

In sum, the subsidiarity principle implies that political authorities should avoid, where possible, intruding on the work of universities and professional schools when these institutions act pursuant to their mission and in ways that promote the private and public good.[37] And while academic institutions are entitled to “a certain autonomy” in pursuing their mission, the political order retains ultimate responsibility for coordinating the activities of these institutions with the rest of society and with the law.

Given the above, how might a United States Supreme Court decision involving the academic mission look if the decision reflected subsidiary concerns?[38] While several possibilities could be pursued,[39] attention in this article, given its concern with the mission of professional schools (and law schools in particular), will focus as a starting point on the litigation context outlined in the following scenario. This situation is one in which the Court must apply a broad Constitutional principle, invoked by a litigant opposing an intermediary institution, to a context in which the intermediary, pursuant to its mission and expertise, has undertaken actions that in its judgment serve the good of its members and the public good. The Court might find that this context has important bearing on how the law should be interpreted. Where the intermediary body’s activities are grounded in its proper institutional mission and expertise, the Court might find that resolution of the issue at hand would require the Court, without having the pertinent expertise, to contradict the judgment of the intermediary. It might also find that the goals pursued by the intermediary body are to some degree harmonious with the broad purposes underlying the Constitutional provision and that the intermediary’s activities can be coordinated with national law without imposing the restriction advocated by the intermediary’s opponent in the litigation. Accordingly, in such a situation the Court might defer to the institution’s judgment and hold that the institution’s activity does not contravene national law.

As discussed below, Justice Powell’s opinion in Bakke (to a certain extent) and the Court’s majority opinion in Grutter can be seen as reflecting such an approach.[40] It will also be argued, however, that the context of the litigation in FAIR departs from the above scenario in important respects. That context significantly diminished FAIR’s ability to argue for, and the Court’s ability to acknowledge, the centrality to the litigation of the law schools’ mission.

The analysis that follows explores the ways in which the Supreme Court’s decisions in Grutter and FAIR did or did not reflect the subsidiarity concerns described above as they relate to the law school mission. It must be noted at the outset, however, that because the focus of this article is on Court decisions, an alternative possibility for deference in FAIR is not explored here. Congress might have chosen not to impose the restrictions at issue on law schools, in deference to the law schools’ stand on its mission. Indeed, FAIR argued that the Government had not shown any harm to military recruiting resulting from the law schools’ stance and that Congress made no findings in this respect.[41] If in fact there was little or no such harm and Congress was aware of this (issues not explored here), then Congress, following subsidiarity concerns, might well have chosen not to impose these restrictions. However, it did impose them, and the Court in FAIR had to decide the matter as presented to it.

III. The Concept of Mission in Justice Powell’s Opinion in Bakke

In Bakke, the Supreme Court was confronted with a challenge to the special admissions program of the medical school at the University of California, Davis [“the University”], which reserved sixteen of the 100 places in each entering class to applicants from designated minority groups.[42] Four of the Justices voted to strike down the program as violating Title VI of the 1964 Civil Rights Act.[43] Four of the Justices found the program to be consistent with Title VI and with the Equal Protection Clause of the Constitution.[44] Taking a unique view—and one that became dispositive to the case—Justice Powell judged that one of the goals advanced by the University in support of its admissions program—student body diversity—was constitutionally compelling,[45] but that the particular method chosen by the University to accomplish this goal failed to meet the demands of the Equal Protection Clause.[46]

Justice Powell’s opinion was not only crucial for the outcome of the litigation in Bakke. It was also of foundational importance for understanding the significance of the subsidiarity concept of the academic mission in subsequent constitutional litigation for two reasons. First, Justice Powell made this concept prominent and invoked academic freedom to support the proposition that the University had a compelling interest in its race-conscious admissions program.[47] Second, he used the concept of mission as a critical tool in determining what purposes proffered by the University in support of its program were or were not within the scope of its mission.[48]

To appreciate the creativity and significance of Justice Powell’s Opinion, it is necessary to observe how the University argued in support of its special admissions program and how Justice Powell formulated and evaluated these arguments. Confronted with the University’s extensive principal brief of some 60 pages—with manifold layers of argument—Justice Powell distilled the arguments made by the University to an articulation of four “purposes:”

(i) “[R]educing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession;” (ii) countering the effects of societal discrimination; (iii) increasing the number of physicians who will practice in communities currently underserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse student body. [49]

Justice Powell’s distillation of the University’s arguments and his presentation of this list of purposes could give the impression that in its brief the University accorded equal or similar weight to these purposes. A reading of the University’s principal brief, however, shows a very different picture. The structure and emphasis of the brief put the second listed purpose—“countering the effects of societal discrimination”[50]—as the principal problem the University sought to address,[51] with the first listed purpose—“reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession”[52]—being the principal means within the University medical school’s control of addressing the effects of societal discrimination.[53]

To see this, consider the brief’s statement of the “Question Presented” to the Court:

When only a small fraction of thousands of applicants can be admitted, does the Equal Protection Clause forbid a state university professional school from voluntarily seeking to counteract effects of generations of pervasive discrimination against discrete and insular minorities by establishing a limited special admissions program that increases opportunities for well-qualified members of such racial and ethnic minorities?[54]

This formulation of the issue before the Court speaks first of the University as “voluntarily seeking to counteract effects of generations of pervasive discrimination against discrete and insular minorities,” thus addressing what the University sees as the problem of “societal discrimination.”[55] The University goes on to mention the means by which the University sought to address this problem: “by establishing a limited special admissions program that increases opportunities for well-qualified members of such racial and ethnic minorities”[56] (an adumbration of the first purpose on Justice Powell’s list). It should be noted that the University’s statement of the “Question Presented” does not mention the goal of diversity that would become crucial in Justice Powell’s opinion.

Pursuing its concern about societal discrimination, the University states that “[i]n the two years that followed [the medical school’s opening], the medical school faculty fashioned and implemented a special admissions ‘Task Force’ program to compensate for the effects of societal discrimination on historically disadvantaged racial and ethnic minorities.”[57] The immediately following sentence states that the objectives of the special admissions program included “enhanced diversity in the student body and the profession [a truncated version of the first and fourth items on Justice Powell’s list], improved medical care in underserved minority communities [an adumbration of the third item on Justice Powell’s list], [and] elimination of historic barriers to medical careers for disadvantaged members of racial and ethnic minority groups [the second purpose on Justice Powell’s list] . . . .”[58] Thus, at the outset of its brief the University presents societal discrimination as the principal problem addressed by the University’s admissions program, with “enhanced diversity” being one among other objectives that would result from addressing that problem.[59]

Pressing the importance of the problem of societal discrimination, the University begins the “Summary of Argument” section of its brief by stating that “[o]ne of the things in which the nation may take great pride . . . has been its willingness to address in actions, rather than simply words, the racial injustices that are the unhappier parts of our legacy,”[60] adding that the “dismantling of the formidable structures of pervasive discrimination requires great endurance, and the courage to maintain the necessary great effort.”[61] Still within the “Summary of Argument” section, the brief makes an appeal for recognition of efforts to redress the effects of societal discrimination made by subsidiary institutions—“those institutions that, in the exercise of their appointed roles, confront at close range the enduring effects of what has been handed down to us . . . .”[62] Continuing this appeal, the brief states that the “effort to deal with many of the facets of the legacy of past racial discrimination” was undertaken by “a broad range of independent and autonomous sources” and that “[n]o central authority directed this effort.”[63]

Following upon this summary, the University once again puts the problem of societal discrimination in the forefront when it begins the “Argument” section of its brief with the portentous statement that “[t]he outcome of this controversy will decide for future decades whether blacks, Chicanos and other insular minorities are to have meaningful access to higher education and real opportunities to enter the learned professions, or are to be penalized indefinitely by the disadvantages flowing from previous pervasive discrimination.”[64] Finally, the University states in summary fashion that “[t]he goals of the Davis program . . . are of a remedial nature, seeking to counter the effects of past discrimination . . . .”[65] In sum, the brief makes the University’s effort to remedy the effects societal discrimination the principal justification of its special admissions program, with student body diversity being simply one of the benefits resulting from addressing the problem of discrimination.

Given the University’s arguments, one might think that with respect to the first prong of the compelling interest test,[66] Justice Powell could fairly conclude that the principal purpose proffered by the University in support of its special admissions program was the goal of redressing the effects of societal discrimination, with the only other colorable purpose being limited to the goal of reducing the under-representation of minority students in medical schools. However, perhaps armed with his sensitivity to the academic mission, Justice Powell provided a more expansive summary of the University’s possible purposes to include its references to the educational benefits of student body diversity and to the effort to provide medical services to underserved minority communities.[67]

On the basis of this more expansive and sympathetic reading of the University’s arguments, Justice Powell reached a two-fold judgment with respect to the concept of mission.[68] First and fundamentally, he did something that the University itself did not attempt to do. He established a concept of a unitary mission of the University as an academic institution in order to provide a justifiable basis for its admissions program.[69] Despite this, his second judgment was to not permit the concept of mission to justify any and all goals that the University might proffer. To appreciate the significance of Justice Powell’s move and his handling of the concept of mission, it is necessary to examine the ways in which the University referred to its mission.

In its principal brief, the University did not make an argument grounded in a unitary concept of its mission. The University did not put the concept of the academic mission in the “Question Presented,” in the “Statement,” or in the “Summary of Argument.”[70] It refers to “mission” only three times—without particular focus or emphasis—in its principal brief.[71] The first reference does not occur until about a third of the way through the brief, where the University mentions that following the launch of Sputnik in 1957, medical schools put greater emphasis on “numerical indicators” for admissions criteria to support their “scientific mission,” as opposed to their “other charges.”[72] This reference is defensive and dismissive in tenor because here, the University was attempting to downplay the importance of numerical admissions standards as opposed to what the University asserts was the historically greater “emphasis on noncognitive factors” that medical schools employed as admissions criteria,[73] the latter emphasis being more congenial to the special admissions program the University sought to justify. The subsequent references occur in the context of mentioning that the use of other, race-neutral, criteria might (in an undefined way) impact the medical school’s (unspecified) “multifold missions.”[74]

Thus, the University never explicitly advanced the notion of mission in a positive way as a ground for any of the purposes it proffered for its special admissions program. It resorted to reference its missions as plural, and in a defensive mode.[75] At no time did the University seek to provide an explicit argument that any of the ends or purposes of its admissions program were integral to its unitary, principal mission as a professional school.

Despite the University’s lack of focus on the concept of its mission, Justice Powell makes this concept central to his analysis. He associates this concept with the University’s diversity goal—the only one of the University’s four purposes that he accepts as “a constitutionally permissible goal for an institution of higher education”[76] and as a compelling constitutional interest.[77] According to Justice Powell, this purpose, grounded in the University’s educational judgment in selecting its student body, was encompassed within “academic freedom.”[78] Expanding on the theme of academic freedom, Justice Powell adopted the view that student body diversity stimulates the “robust exchange of ideas”[79] and “the atmosphere of ‘speculation, experiment, and creation’—so essential to the quality of higher education.”[80] “In this light,” Justice Powell concluded, the University “must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission.”[81]

Justice Powell thus strongly identified the diversity goal with a unitary concept of the University’s mission. In Justice Powell’s judgment, the diversity goal is not merely a collateral “benefit” that might accrue in pursuit of the University’s mission.[82] Rather, his strong statement about “paramount importance” suggests that diversity is integral to the pursuit of that mission. Justice Powell thus provided academic institutions an avenue to pursue racially discriminatory programs that would presumably be closed to other institutions not serving the same mission.[83] This is a very powerful positive endorsement of the academic mission.

It is important to realize, however, that Justice Powell gave such an endorsement to only one of the four purposes understood to be proffered by the University. His rejection of the purpose that the University portrayed as fundamental—countering the effects of societal discrimination[84]—is of particular importance for the issue of subsidiarity. As we have seen, in its principal brief the University made paramount its decision to address the problem of societal discrimination.[85] In doing so, many of its arguments sounded in subsidiarity concerns. The University, in effect, called attention to its service as a subsidiary body in placing itself among “those institutions that, in the exercise of their appointed roles, confront at close range the enduring effects” of societal discrimination.[86]

Emphasizing the initiatives undertaken by these intermediary institutions in support of the public good, the University asserted that these institutions responded as “independent and autonomous sources” in an “effort to seek new ways to undo the continuing effects of past discrimination.”[87] Calling attention to the participation of academic institutions, the University stated that “educators have repeatedly been at the center of this country’s efforts to grapple with the disabilities historically imposed on persons because of their color or ancestry.”[88] In appealing for recognition of the role of educational expertise in crafting its special admissions program, the University argued that “[r]esponsible exercise of the admissions authority vested in medical faculties . . . justifies . . . attention to the effects of the legacy of racial discrimination and serious efforts to seek to undo these effects in the areas of educational and professional concern.”[89]

Despite this appeal by the University for recognition of its work as a subsidiary institution, Justice Powell determined that the goal of countering the effects of societal discrimination could not justify a University’s racially discriminatory admissions program.[90] What makes this determination particularly interesting in the present context is that Justice Powell’s reason for rejecting this purpose was based on his view of the University’s mission.[91] His basic premise was that racial classifications favoring members of victimized groups to the detriment of others required “judicial, legislative, or administrative findings of constitutional or statutory violations.”[92] He concluded that the University was in no position to make such findings because “[i]ts broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality.”[93] Thus, Justice Powell’s reason for rejecting the University’s arguments on this point was grounded in limitations on the University’s mission.[94]

In sum, Justice Powell employed the concept of the academic mission as a powerful critical and analytical tool, having both positive and negative consequences for the University’s arguments. On the positive side, he grounded the goal of student body diversity in a unitary concept of the educational mission of the University.[95] He did so by associating diversity with the educational benefits accruing through the robust exchange of ideas for the University’s students generally.[96] This integration of the diversity goal into a unitary concept of the academic mission is significant for Bakke and for subsequent constitutional litigation because while the University argued for the educational benefits of diversity, it never explicitly grounded the diversity goal in a unitary concept of its mission.

However, Justice Powell does not permit the concept of mission to justify any and all goals that a professional school might proffer. Instead, he insists that while an institution’s mission legitimately encompasses certain ends and means, the definition of its mission at the same time adumbrates limitations on its competence.[97] In the context of Bakke, Justice Powell rejects the University’s goal of redressing the effects of past discrimination because the means necessary to do so in a constitutionally permissible way are neither within the scope of its mission nor within its competence.[98] He reaches this judgment despite the fact that the University had given priority to this goal and offered powerful and sympathetic arguments—grounded repeatedly in subsidiarity concerns—in its support.

IV. The Law School’s Mission in Grutter and Fair

Like Bakke, Grutter involved an Equal Protection Clause challenge to a professional school’s race-conscious admissions program.[99] The outcome of Bakke prohibited institutions of higher learning from using numerical quotas for admissions but allowed race-consciousness to play a more limited role in the selection of students.[100] In conjunction with the opinions of four other justices who, in a concurring opinion, voted that the University of California at Davis’ (U.C. Davis) admissions program violated Title VI, Justice Powell’s opinion in Bakke was of key importance in striking down the quota system in medical school admissions programs[101] while, at the same time, stating that diversity constituted a compelling interest for a university.[102] However, because of the fractured nature of the opinions in Bakke and because of the presence of new members of the Court, a revisiting of the issue of affirmative action in admissions presented an uncertain outcome. Noting a division among the circuit courts on the issue of whether race-conscious admissions programs were constitutionally permissible, the Supreme Court granted certiorari in Grutter to determine “[w]hether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities.”[103]

A. The Law School’s Arguments for Its Mission in Grutter

A reading of the Law School’s brief in Grutter shows that the Law School did its homework on Justice Powell’s Bakke opinion,[104] accepting and relying on Justice Powell’s judgments in several key respects relating to mission. While the University of California argued four purposes to justify the Davis medical school’s admissions program,[105] the Law School argued for only one purpose to support its program: establishing a diverse student body[106]—the only purpose that Justice Powell in Bakke accepted as compelling in the context of higher education.[107] Following Justice Powell’s lead, in arguing for diversity, the Law School put the concept of its mission at the forefront and explicitly argued that enrolling a diverse student body was an integral part of its mission.[108] Despite its concern about the effects of past discrimination, which it shared with the University of California, the Law School did not argue that an academic effort to address these effects constituted by itself a compelling interest sufficient to meet the strict scrutiny test required by the Equal Protection Clause.[109]

Apart from the fact that the Law School argued for only one interest— diversity—in support of its admissions program, the most important respect in which the Law School’s brief differs from the University of California’s brief is that the Law School made a unitary concept of its mission salient and grounded the diversity goal in this mission.[110] The Law School asserted at the outset of its brief that its admissions program was not unconstitutional because, “[f]irst, academic selectivity and student body diversity, including racial diversity, are both integral to the educational mission of the Law School.”[111] In arguing for the program, the Law School went on to make repeated references to its mission[112] and stressed this concept and its connection to the diversity goal further by arguing at several points that diversity, including racial diversity, was “essential to” or at the “core” of its mission.[113]

Again taking Justice Powell’s opinion to heart, the Law School argued that diversity was integral to its educational mission by describing the manifold educational benefits that, it asserted, result from a diverse student body, especially one that is racially diverse.[114] As articulated by the Law School, these benefits included helping students “to bridge racial divides, work sensitively and effectively with people of different races, and simply overcome the initial discomfort of interacting with people visibly different from themselves . . . .”[115] Citing social science studies, the Law School indicated that

[e]xtensive (and virtually unchallenged) evidence confirms that a racially diverse student body helps students to develop the interpersonal skills necessary to “work more effectively and more sensitively” in a world that “is and will be multi-racial;” helps to dispel historic stereotypes; and introduces students to unfamiliar experiences and perspectives to promote the “mutual respect” and “sympathetic engagement with the experiences of other people that are basic to the mature and responsible practice of law.”[116]

On the basis of the evidence alluded to, the Law School argued that effective teaching about the effects of racial stereotyping and discrimination cannot be accomplished simply through book learning.[117] The Law School reasoned that effective education in these matters required the presence of minority students in the classroom.[118] Admitting the number of minority students sufficient for this purpose throughout the school thus required a “critical mass” of such students sought by the Law School’s admissions program.[119]

On the basis of these reasons, the Law School argued that educational diversity was “vitally important” to its mission.[120] Stressing the importance of this mission and its argument that the educational benefits mentioned above cannot be achieved without the presence of minority students, the Law School asserted that it “values the presence of minority students because they will have direct, personal experiences that white students cannot—experiences which are relevant to the Law School’s mission.”[121] These experiences were important to the classroom dynamic and to the Law School’s mission because “breaking down [racial] stereotypes is a crucial part of [this] mission . . . .”[122]

It must be noted here that the fact that the Law School desired to remain an elite institution with a selective admissions policy became an issue with respect to the Law School’s mission.[123] Because the Law School sought to maintain its status as an elite institution while at the same time diminishing test score criteria to a limited degree in an effort to admit a “critical mass” of minority students, the Law School was confronted with a challenge that it use less selective admissions criteria generally to achieve its goal of admitting more minority students, thus “abandoning” or “sacrificing” its desire to remain an elite institution.[124] Confronted with this challenge, the Law School responded, not by abandoning reliance on the description of its mission, but by vigorously arguing that “academic selectivity and student body diversity, including racial diversity, are both integral to the educational mission of the Law School.”[125]

Accordingly, the Law School expressed pride in its elite status[126] and asserted that “[i]t has achieved that preeminence by carefully selecting and training students of exceptional promise to serve as leaders of the profession and of our Nation.”[127] Characterizing this preparation for leadership as its “mission,” the Law School argued that the “effective pursuit of this mission requires a curriculum that ‘firmly links professional training to the opportunity for reflection about . . . [among other things] the effects of religious, racial and gender intolerance in our culture.’”[128] The Law School further argued that such reflection about racial intolerance was most effectively pursued in the classroom when minority students were present to provide input about their experiences.[129]

Expanding further on the importance of selectivity to its mission, the Law School asserted that “a decision to overrule Bakke would cut the minority lawyers currently being trained by half or three-quarters, resulting in the near-complete absence of minority students from the schools that train most of our federal judges, prosecutors and law clerks (to say nothing of the new lawyers at our country’s leading law firms).”[130] The suggestion that providing minority students with an elite law school education would prepare these students for positions of leadership thus provided the Law School with a diversity-related argument that abandoning selectivity “would require the Law School to become a very different institution, and to sacrifice a core part of its educational mission.”[131] On the basis of such arguments, the Law School concluded that “high academic standards and a diverse student body are both integral to effective pursuit of its chosen educational mission.”[132]

As noted above, in addition to employing the concept of the academic mission in a positive way, Justice Powell also used it critically in concluding that an effort to remedy societal discrimination is outside of the constitutionally acceptable scope of an academic mission.[133] The Law School again followed Justice Powell in this regard. The Law School disavowed any intent to remedy “societal discrimination” because, as stated in its brief, “no individual employer or educational institution could hope to actually remedy societal discrimination . . . .”[134] The Law School endorsed Justice Powell’s conclusion that pursuing the educational benefits of diversity was “entirely different” from seeking to remedy societal discrimination.[135] Thus, whereas the University of California summarized the purposes of the U.C. Davis medical school’s admissions program as being “of a remedial nature, seeking to counter the effects of past discrimination,”[136] the Law School was careful to stress that the goal of its program was “educational” in nature and integral to its educational mission, thereby disavowing any remedial intent.

In noting this disavowal, it should be mentioned that the Law School’s effort to remain within the constraints of Justice Powell’s opinion was not accomplished without some uneasiness. Lee C. Bollinger, President of the University of Michigan at the time of the Grutter litigation, described the “difficulty” posed to the Law School’s litigation strategy by Justice Powell’s rejection of race-conscious admissions policies for the purpose of remedying societal discrimination.[137] The problem, he said, “was essentially that no one really believed that the past could or should be ignored or that the present society is by any means free of discrimination.”[138] Choosing to rely on Justice Powell’s opinion and opting not to seek an alternative justification meant that “[t]he ‘diversity’ rationale was thus the critical element in any constitutional defense of affirmative action in higher education . . . .”[139] Consequently, the solution the Law School pursued to the problem was to insist on the inseparability of “social reality” and “educational benefits.”[140]

In accord with this strategy, in its brief the Law School makes prominent mention of the problem of racial discrimination and does so, not by explicitly advancing a remedial purpose, but by invoking the educational benefits accruing from a racially diverse student body. The brief makes salient “the unfortunate persistence of widespread racial discrimination”[141] and refers to “the elephant in the room—that . . . America remains both highly segregated by race and profoundly and constantly aware of its significance in our society.”[142] It puts forth as a backdrop to its arguments, that “[d]espite noble assertions and considerable progress, our society remains deeply troubled by issues of race,”[143] and that “[t]he legal system is at the epicenter of our Nation’s ongoing struggle to overcome racial divisions that persist in our society.”[144]

Nevertheless, the Law School argued that its desire to admit “meaningful numbers” of racial minority students was not remedial in nature but due to the fact that because “of our Nation’s unfortunate past and ongoing struggle with racial inequality, such students are both uniquely likely to have had experiences of particular importance to the Law School’s mission, and uniquely unlikely to be admitted in meaningful numbers on criteria which ignore those experiences.”[145] This last phrase, while not explicitly advancing an intent to remedy societal discrimination, certainly suggests such a concern. However, despite its sense of an “ongoing struggle with racial inequality” and its desire to admit students who because of this inequality are “unlikely to be admitted in meaningful numbers,” the Law School did not explicitly identify its mission with the purpose of remedying societal discrimination.[146]

B. The Grutter Court on Mission

The Law School’s argument that student body diversity was integral to its mission was resoundingly successful in Grutter and was adopted in the Court’s majority opinion.[147] One of the first things the Court had to do if it were to accept the fundamental thrust of the Law School’s arguments was to view the purpose of the School’s admissions program as grounded in the Court’s view of the Law School’s proper mission as an educational institution. If the Court were to accept Justice Powell’s characterization of things, this would require accepting that the purpose of the Law School’s admissions program was not remedial in nature but an effort to obtain the educational benefits of diversity.

At the outset of its analysis, the Court accepted the Law School’s statement of the admission program’s goal.[148] Apparently reading the Law School’s references to the need to be mindful of the ongoing effects of discrimination as relating the goal of diversity’s educational benefits and not as implying a remedial purpose, the Court quoted from the Law School’s brief in finding that the Law School offered as a justification of its admissions program only an interest in “obtaining ‘the educational benefits that flow from a diverse student body.’”[149] This assessment of the goal of the admissions program not only accepted the Law School’s judgment that the goal was not remedial, but that the goal in fact pursued related to the educational benefits of the program, as the Law School had repeatedly stressed.

This acceptance of the decisive role of the educational benefits of the admissions program was critical in two respects. First, it prompted the Court to formulate the constitutional issue before it as whether the interest in obtaining the educational benefits of diversity was compelling “in the context of higher education.”[150] Second, given higher education—bringing into play the concept of the academic mission—as the context for interpreting a broad constitutional provision, the Court began its analysis by acknowledging the Law School’s mission and stating that “[t]he Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.”[151]

In further support of its assessment of, and deference to, the Law School’s educational judgment, the Court found that the Law School’s pursuit of a critical mass of minority students did not amount to “outright racial balancing,” which would be neither educationally-grounded nor constitutional.[152] Rather, following the Law School’s view that “critical mass” is an “educational concept,”[153] the Court found that the Law School’s pursuit of a critical mass of minority students was grounded in “the educational benefits that diversity is designed to produce.”[154]

Despite the fact that the Court deferred to the Law School’s educational judgment that diversity was essential to its mission, the Court went on to cite evidence that the educational benefits of diversity were “substantial.”[155] In a brief paragraph devoted to the Law School’s arguments in this regard, the Court adopted the district court’s finding that the admissions policy aided in destroying racial stereotypes, promoted understanding among racial groups, and that a classroom with students of diverse backgrounds made class discussions more enlightening.[156]

With respect to the selectivity component of the Law School’s mission, the Court relied importantly on two amicus briefs filed in support of the Law School. The first amicus brief the Court relied on in this connection was filed by retired military officers and civilian leaders of the military.[157] The Court’s reliance on this brief represented a significant success for the Law School. In an account of the Law School’s strategy in the litigation, the University of Michigan’s then-President discussed “the idea and the efforts to enlist the military in the defense of affirmative action.”[158] He noted that the idea of getting the military to provide support for affirmative action through an amicus brief “was obviously a brilliant possibility, not only because of the respect accorded to the military in society, but also . . . because it emphatically reinforced the theme of the pervasiveness of affirmative action in society and the risk of it all coming undone after so much effort and so much success.”[159]

The Law School’s enlisting of the military for support constituted another success in its litigation tactics. The Court’s reference to this brief was the most extensive treatment it gave to any of the amicus briefs filed in the Law School’s support. The brief supported, as the Law School intended, both the notion that affirmative action policies were pervasive in American society and that the combination of diversity and selectivity could be integral to an institution’s mission in a racially diverse society.[160] The Court quoted favorably the military’s brief for the point that “[t]o fulfill its mission, the military ‘must be selective in admissions for training and education . . . and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse educational setting.’” [161] Relying on this point, the Court agreed that “‘[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.’’[162]

The other amicus brief the Court relied on for the selectivity goal was filed by the Association of American Law Schools (“AALS”).[163] This brief supported the Law School’s argument that selectivity was vitally important to its goal of training leaders of the legal profession and of society, and thus vitally important to its mission.[164] By way of introducing its reliance on this brief, the Court stated that law schools played an especially important role in training “a large number of our Nation’s leaders.”[165] In support of this conclusion, the Court cited the AALS’s findings that lawyers constituted a large portion of state governors and members of Congress[166] and that graduates of elite law schools represented one-fourth of the members of the U.S. Senate, 74 U.S. Court of Appeals judges, and nearly 200 U.S. District Court judges.[167]

With the evidence it relied on from these amici, the Court credited the Law School’s conclusion that selectivity was integral to its mission and agreed that the Law School need not abandon that component of its mission.[168] Such abandonment, the Court stated, “would require the Law School to become a much different institution and sacrifice a vital component of its educational mission.”[169] Moreover, forcing the Law School to adopt a less selective admissions policy “may preclude the university from . . . assembl[ing] a student body that is not just racially diverse, but diverse along all the qualities valued by the university.”[170] Endorsing selectivity as contributing to purposes vital to the Law School’s conception of its mission, the Court rejected the claim that the Law School was constitutionally required to adopt a different admissions policy that would “forc[e] the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.”[171]

C. The Concept of Mission As Argued in FAIR

At issue in FAIR was a challenge to the enforcement of the Solomon Amendment, which, in its most recent reiteration, denies many forms of federal funding[172] to academic institutions that prohibit military recruiters “from gaining access to campuses, or access to students . . . on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.”[173] If a university sub-element, such as a law school, refuses to comply with the Solomon Amendment, the denial of funds applies to the university as a whole.[174]

In FAIR, an action for a preliminary injunction against enforcement of the Solomon Amendment was filed in federal district court by FAIR, an association of certain law schools and law faculties dedicated to academic freedom and opposing discrimination.[175] They claimed that the Solomon Amendment’s funding restriction was unconstitutional principally because it would force law schools to surrender their “First Amendment rights of academic freedom, free speech, and freedom of expressive association . . . .”[176] Initially, the district court denied FAIR’s request for a preliminary injunction.[177] Upon review, a divided panel of the Third Circuit Court of Appeals reversed and ordered the district court to enter a preliminary injunction against enforcement of the Amendment.[178] The Supreme Court thereafter granted the Government’s petition for certiorari.[179]

1. FAIR’s Argument for the Law Schools’ Mission

With respect to the concept of mission, what is most apparent in comparing the briefs of the University of Michigan Law School and FAIR is that FAIR did not make this concept salient in the way that the University of Michigan Law School did. Whereas the Law School’s arguments in support of its admissions program repeatedly stressed that student body diversity was integral to its core mission,[180] FAIR, in advocating the law schools’ position in its brief, made only one explicit reference to the mission of law schools.[181]

Despite this lack of explicit mention of the law school mission, FAIR identified several mission-related goals of its members in support of their challenge to the Solomon Amendment.[182] Moreover, the one time when FAIR explicitly employed the concept of the law school mission in advancing its argument was important in that it occurred at the outset in the “Statement” section of the brief.[183] FAIR prepared the context for this reference by stating that law schools were not simply “vocational schools” that teach the technical rudiments of the legal craft.[184] Rather, “[l]aw schools are, and define themselves as, normative institutions [that] aspire to shape future lawyers who can profoundly change our society, its mores and values, and who will urge their visions of justice on society at large.”[185] With this background, FAIR stated that “[l]aw schools admonish their students that issues of justice are at the core of [their] mission . . . .”[186]

In the present context, these opening statements in FAIR’s brief are noteworthy in two respects. First, the characterization of law schools as “normative institutions” strikes a chord that was not sounded in the University of Michigan’s brief in Grutter.[187] While, as we have seen, in its brief the Law School took a normative stance against racial discrimination in expressing substantial concern about the ongoing effects of such discrimination, it did not, following Justice Powell’s lead in Bakke, support its admissions program by invoking an interest in remedying discrimination as a separate compelling interest.[188] Additionally, while it argued vigorously that diversity in admissions was integral to its mission and (as discussed below) served the public good, it did not at any time explicitly call attention to itself as a normative institution or argue that its admissions program was required as a matter of moral principle.[189]

FAIR’s reason for emphasizing the fact that law schools are normative institutions was related to its posture in the litigation, and this posture was significantly different from the position the Law School argued in Grutter.[190] In Grutter, the Law School argued that its admissions policy, far from being opposed to the broad Constitutional principle of Equal Protection, was not only consistent with that principle but in accord with federal statutes and Government policy on issues of discrimination.[191] FAIR, on the other hand, was in the position of opposing a specific Congressional mandate that it thought was morally perverse.[192] Accordingly, its litigation strategy argued for respect for law schools as normative institutions in a situation in which the norms of these institutions were opposed to those reflected in a federal statute.[193]

The second point to note about FAIR’s opening is that, like the Law School’s Grutter brief, FAIR associates the law school mission with training lawyers who will be in positions of social leadership.[194] This aspect of the law school mission was significant in persuading the Court to rule in favor of the Law School.[195] But the Law School emphasized the non-ideological character of its stance in stating, for example, that the minority students it admitted included both “liberals and conservatives.”[196]

FAIR’s brief, on the other hand, emphasized a point not highlighted in the Law School’s account of leadership training. FAIR stressed that law schools seek to train future leaders who will “profoundly change” society and its values.[197] For its part, the Law School argued that training minority students for positions of leadership was necessary for public confidence in the legal system,[198] and this argument was accepted by the Court.[199] One might characterize this as a “conservative” argument, grounded in public perception and confidence in the stability and legitimacy of the legal system. FAIR’s statements, on the other hand, focus on the potential effect that law school graduates have, not on reinforcing public perceptions, but on changing the public’s “mores and values.”[200]

Thus, FAIR’s opening statement on the mission of law schools situates these subsidiary institutions in a very different context than was available to, and exploited by, the University of Michigan Law School. Unlike in Grutter, this context was one of opposition and protest to government policy, with an appeal to respect the right of opposition in light of the normative character of law schools. With the foundation provided by this introductory statement, FAIR argued for three mission-related goals appealing to recognition of, and deference to, law schools as normative institutions. These goals, all grounded in the stance of opposition, were: (1) teaching moral values, (2) protesting an allegedly immoral recruitment policy, and (3) protecting law schools students from discriminatory practices of employers on campus.[201]

With respect to the first of these three goals, it was undisputed in the litigation that law schools had the right to teach that discrimination on the basis of sexual orientation is morally wrong and that it is immoral to assist those who discriminate on that basis.[202] What FAIR argued was that in teaching these principles, law schools had the right to do so by means that, in their judgment, were the most effective—by putting those principles into practice and not simply discussing them in class.[203]

Accordingly, FAIR argued that the Solomon Amendment applied unjustifiable pressure on the law schools to surrender their chosen means of teaching their principles.[204] In support of this point, FAIR called attention to the specific types of affirmative assistance that the Solomon Amendment would require law schools to provide to military recruiters[205] and to the harsh penalties resulting from failure to comply.[206] FAIR again called attention to the point, made at the outset of its brief, that law schools are normative institutions that “adopt[] and liv[e] by an antidiscrimination policy . . . .”[207]

Pursuing this argument for the teaching goal, FAIR asserted that the anti-discrimination policy “serve[s] both pedagogical and instrumental purposes by teaching values students would not otherwise learn from case books and by fostering an environment of free and open discourse.”[208] FAIR argued that law schools’ anti-discrimination teaching could not be accomplished adequately under alternative measures the schools had adopted in an effort to comply with the law and would have to adopt if the Solomon Amendment were upheld.[209] Further, such ameliorative measures—forced upon law schools when they abandoned the non-assistance principle—led to “student expressions of cynicism and cries of hypocrisy when the lessons turn to topics such as equality, human dignity, and other underpinnings of a just society.”[210]

In keeping with this reference to hypocrisy and the principle of practicing-what-you-preach, FAIR made several references to the need for law professors to have credibility with students when the professors “preached” the anti-discrimination principle.[211] FAIR stressed that in resorting to measures to accommodate the military, “law schools have lost credibility to preach values of equality, justice, and human dignity.”[212] It reported that when law schools sacrifice the non-assistance principle, law professors “feel inhibited to preach about integrity, adhering to principle, and fighting for a worthy cause.”[213] Calling attention, again, to law schools as normative teaching institutions, FAIR asserted that “in a law school, of all places, to preach the principle while defying the dictate teaches nothing but cynicism.”[214]

In arguing for this teaching goal, FAIR did not claim that the principle of nondiscrimination on the basis of sexual orientation was a principle generally accepted by American society. Indeed, FAIR made repeated reference in its brief to the fact that this issue is a matter of “raging national debate.”[215] The national debate on this issue, and the fact that its stance in the litigation was opposed on related grounds to military recruitment policy, provided the context for FAIR’s statement of the second goal. This was the goal of protest to government law and policy.[216] FAIR’s emphasis on the protest goal had important consequences for its litigation strategy. Along with the teaching goal, it had the effect of emphasizing law schools as “speakers”[217] and putting at the forefront that the case was about the First Amendment as protective of the right to dissent from government policy.[218]

FAIR thus portrayed law schools as taking a stand in a raging culture war on the issue of gay rights, and it made law schools’ teaching and protest on this issue central to the litigation. The third law school goal—protecting students from discrimination on campus[219]—was, of course, related to the cultural battle. However, at one point in its brief, FAIR reduced the significance of this goal for the questions before the Court. It stated that law schools designed their anti-discrimination policy not “only to teach and to protest,” but also to protect their students on campus from discriminatory practices of employers.[220] FAIR immediately added, however, that the protection goal “does not detract from the additional communicative purposes that the record establishes.”[221] This statement suggests that the protection goal, while perhaps of equal importance for the anti-discrimination policy, was not as significant as the teaching and protest goal for the First Amendment issues on which the litigation would turn.

Accordingly, despite leading off its brief with a statement implying that the law school opposition to the Solomon Amendment was mission-related, once FAIR turned to the specific First Amendment arguments critical to the litigation, it no longer employed any explicit argument grounding its position in a specific concept of the law school mission.[222] Instead, within the “Argument” section of the brief, it again failed to explicitly refer to the law school mission, instead framing the issue before the Court with a one-sentence paragraph stating that “[t]his case involves speakers on both sides.”[223] While valuable as an introduction to the technical First Amendment issues on which the litigation turned, this formulation had the effect of characterizing a law school as simply an institutional “speaker”—divorced from any specific concept of the institution’s mission.[224]

That declining to rely on or emphasize the concept of mission may have been a deliberate choice is suggested by two other points in FAIR’s brief. First, as we have seen, the Supreme Court’s Grutter opinion contained several positive references to the law school mission,[225] representing a source that subsequent academic litigants might utilize with respect to mission. Yet FAIR cites Grutter only once,[226] not for the Grutter Court’s acknowledgment of the academic mission, but for its citation to Sweatt v. Painter.[227] This citation occurs in the context of FAIR’s argument that when academic freedom is involved, the Supreme Court should give more rigorous scrutiny to situations in which lawyers engage in “protests against government policies and advanc[ed] minority interests against politically entrenched majorities.”[228] Thus, FAIR cites Grutter not directly for an endorsement of law schools’ missions, but vicariously for support of law schools’ role in protest and social change.

Second, when FAIR states in its brief that in Boy Scouts of America v. Dale,[229] a case involving First Amendment issues similar to those in FAIR,[230] the Supreme Court “ultimately deferred to the [Scouts’] assertion of its own mission,”[231] FAIR did not take this occasion to make analogous, explicit reference to the law school mission or to plead for deference to that mission. Instead, while casting doubt on the Scouts’ claim that their stance against homosexual members was “integral” to the organization, FAIR stated that “the ardent stance against discrimination—and specifically, the refusal to assist discriminatory employers—has been an explicit and earnest article of faith among law schools for decades.”[232] FAIR thus implies skepticism about the Court’s acceptance of a subsidiary association’s claim about its mission.[233] Perhaps because of a conscientious refusal to proffer similar self-serving “mission” claims, FAIR instead appealed to the moral principle against assisting discrimination and identified this principle as “an article of faith.”

2. Arguments of the Government’s Amici on Mission

Several of the Government’s amici challenged FAIR’s position on the law school’s mission.[234] Implicitly accepting FAIR’s background setting of a “raging national debate” on the issue of gays in the military, these amici identified the law school’s mission, not with the adoption of a particular viewpoint on debatable issues, but with providing a “marketplace” or forum for the exchange of ideas.[235] Thus, an amicus group composed of law professors and law students asserted that a decision in favor of FAIR would “frustrate the core mission of academic institutions,” which the group characterized as “promoting the free and open exchange of ideas.”[236]

Similarly adopting this characterization of the academic mission, a group of former military and civilian leaders of the armed forces and the Defense Department [“the military group”] asserted that “[t]he university is peculiarly the ‘marketplace of ideas,’ and the free exchange of diverse viewpoints is supposed to be a fundamental element of [students’] education.”[237] Building on this characterization, the military group argued that “the exclusion of military recruiters or others who do not espouse the views of certain university faculties or administrations constrains the ‘marketplace of ideas’ in favor of a paternalistic notion that university students require protection from ‘dangerous ideas’ or different and ‘unacceptable’ viewpoints.”[238]

Thus challenging the protection goal articulated by FAIR, the military group went on to challenge FAIR’s viewpoint-based statement of the teaching goal.[239] The military group argued that assuming per contra the Solomon Amendment required law schools to make any “statement,” this would simply be an objective statement about the law.[240] Alluding again to the law school mission, the military group reasoned that “[a] law school could not perform its core function if its faculty were to refrain from discussing laws or court decisions that they deem unwise.”[241] Hammering home this point, the military group concluded that “an essential part of law school education is the critical analysis of statutes, regulations and court decisions, and the open discussion of differing views of them.”[242]

A similar stance was argued by the Judge Advocates Association (“Judge Advocates”).[243] The Judge Advocates agreed with the military group in arguing that the institutional role of law schools consists primarily of providing a forum for the exchange of ideas of controversial issues rather than in teaching a particular viewpoint.[244] Noteworthy in this respect is that the Judge Advocates cite Grutter for the Court’s recognition of “the enormous educational benefit that is derived when a law school is open to the free flow of diverse viewpoints.”[245] In arguing thus, the Judge Advocates accepted FAIR’s characterization of the issue before the Court as involving a “raging national debate,”[246] in which the “free flow of diverse viewpoints”[247] would presumably be welcome. At the same time, the Judge Advocates implicitly endeavored to preempt Grutter for a view of the law school mission as associated with the exchange of ideas, rather than with the teaching of a particular viewpoint.[248]

The Judge Advocates went on to press the latter point by challenging the validity of FAIR’s statement that the case before the Court “involves speakers on both sides.”[249] The Judge Advocates argued that “law schools are not speakers,” but were more like public forums.[250] Building on this characterization, the Judge Advocates asserted that “law schools themselves do not convey ideological viewpoints [but are] marketplaces for the exchange of popular and unpopular views.”[251] Relying on the Court’s statement in an earlier case that the “classroom with its surrounding environs is peculiarly the marketplace of ideas,”[252] the Judge Advocates concluded that “law schools, as the stewards of the ‘marketplace of ideas,’ should allow [the military’s] message to be heard,” so that it can “compete freely and fairly with the other messages . . . .”[253]

In sum, the Government’s amici did not let FAIR’s characterization of the law school mission and its advocacy of the goals FAIR identified with that mission go unchallenged. The Government’s amici rebutted the claim that the law school mission should be identified with teaching a particular viewpoint and argued instead that law schools were more appropriately viewed as providing a forum for the exchange of ideas, with the military’s recruitment policy being among these ideas.

D. The Court’s View of Mission in FAIR

The Court’s opinion in FAIR—unanimous and without a single concurring opinion expressing any reservations or nuances—represented a decisive defeat for FAIR in all respects, including with respect to arguments grounded in a concept of the law school mission proffered by FAIR.[254] The Court’s opinion never referred to any law school mission. Its sole reference to the concept of mission occurred when mentioning at the outset that FAIR’s “declared mission is to promote academic freedom, support educational institutions in opposing discrimination and vindicate the rights of institutions of higher education.”[255]

This refusal to invoke any concept of the law school mission is significant because it effectively foreclosed the Court’s reliance on the related concept of deference to the law school mission. As discussed above, the Grutter Court began its analysis of the issues in that case by announcing that “[t]he Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.”[256] In FAIR, on the other hand, the Court did not feel constrained, in evaluating any of FAIR’s arguments, to give deference to any educational judgment of law schools. The only deference the Court accorded in FAIR was to Congress. Citing the Constitution’s grant of power to Congress to “provide for the common Defence,” “[t]o raise and support Armies,” and “[t]o provide and maintain a Navy,”[257] the Court found that the authority of Congress to issue rules for military recruitment “is broad and sweeping.”[258] The Court further found that FAIR had not disputed that this authority encompassed the authority to require academic institutions to afford campus access to recruiters from the armed services.[259]

On this Constitutional basis, the Court held that deference was due to Congress’ judgment because “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies.”[260] With respect to the fact that the case at hand involved Congress’ authority under the Spending Clause, the Court held that “Congress’ decision to proceed indirectly does not reduce the deference given to Congress in the area of military affairs.”[261] Rather, the Court held that “Congress’ choice to promote its goal by creating a funding condition deserves at least as deferential treatment as if Congress had imposed a mandate on universities.”[262]

FAIR had argued vigorously against the idea that Congress was entitled to deference with respect to the Solomon Amendment.[263] This anti-deference point was particularly important for FAIR’s argument that the Government had not shown that campus recruitment was harmed by the law schools’ position.[264] The Third Circuit ruled in FAIR’s favor on this point, finding that the Government had not submitted evidence showing the need to impose the access requirement on law schools and suggesting that the Solomon Amendment may even harm campus recruiting.[265] The Third Circuit held that “the military has ample resources to recruit through alternative means.”[266]

But the Supreme Court rejected FAIR’s argument and overruled the Third Circuit on this point. Noting the Third Circuit’s conclusion that “the Government failed to produce evidence establishing that the Solomon Amendment was necessary and effective,”[267] the Supreme Court held that “[t]he issue is not whether other means of raising an army and providing for a navy might be adequate.”[268] The Court accorded deference to Congress on this point, holding that such a judgment is “for Congress, not the courts.”[269]

The Court’s treatment of the goals FAIR associated with the law school mission was no more favorable. The most important holding in this respect was the Court’s conclusion that “[a]s a general matter, the Solomon Amendment regulates conduct, not speech,” because “[i]t affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.”[270] This holding contradicted a basic premise of FAIR’s position[271] and undermined FAIR’s reliance on the law schools’ teaching and protest goals, grounded by FAIR in its insistence that the Solomon Amendment suppressed the rights of law schools as “speakers.”[272]

The Court also rejected FAIR’s argument that the mission-related goal of teaching against discrimination required recognition of the law schools’ right to refuse to provide affirmative assistance to military recruiters.[273] FAIR argued that law schools had the right to teach the moral principle of refusal to assist discriminators in what they judged to be the most effective way—by acting on this principle.[274] In support of this point, FAIR asserted that when law schools attempted to accommodate the access requirement, law professors’ efforts to “preach” this moral principle was met with “student expressions of cynicism and cries of hypocrisy.”[275]

The Court gave scant credence to this argument. It found that “[n]othing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.”[276] Specifically addressing the “student cynicism” argument, the Court noted that it had previously held that “high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy.”[277] The Court reasoned that “[s]urely students have not lost that ability by the time they get to law school.”[278]

It must be noted, however, that while the Court gave short shrift to the protest and teaching goals while undertaking its analysis of the specific First Amendment issues raised in the case,[279] the Court at no point denied that these goals were important to the anti-discrimination policy of law schools or appropriate to the law schools’ mission. The Court simply found that the teaching and protest goals were not significantly impeded by the Solomon Amendment.[280] Fundamental to its analysis in this respect was the Court’s conclusion that, as the Government argued, “[l]aw schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds.”[281]

E. Analysis

In Grutter, the Law School—as compared to FAIR—had several distinct advantages in arguing for the importance of its mission. Most importantly, in arguing that student body diversity was a compelling interest supporting its race-conscious admissions program, the Law School was able to rely on Justice Powell’s Bakke opinion—related to the same issue at stake in Grutter—in which Justice Powell held that the medical school’s diversity goal was “of paramount importance in the fulfillment of its mission.”[282] The Law School was able to argue that Justice Powell’s opinion represented the governing law on the issue and had been relied on by academic institutions in the decades afterwards.[283]

The support accruing from Justice Powell’s opinion was importantly related to another advantage grounded in the law to be applied in the Grutter case. The primary issue in Grutter was whether the Constitutional requirement of the equal protection of the laws—a broad principle applicable to a host of very different situations—prohibited a law school from implementing a race-conscious admissions policy.[284] Thus, “context” in constitutional interpretation was put in to play significantly in Grutter.[285] Again, Justice Powell prepared the way for this in his Bakke opinion in holding that “the interest of diversity is compelling in the context of a university’s admissions program.”[286]

The Grutter Court followed Justice Powell in this respect. Holding that “[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause,”[287] the Court stated that “strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context.”[288] With this background, the Court framed the issue in Grutter as whether the Law School had, “in the context of higher education, a compelling state interest in student body diversity.”[289] The Court accepted the Law School’s argument that diversity was integral to its mission and decided this issue in favor of the Law School.[290]

Moreover, in arguing that diversity was integral to its mission, the Law School was able to point to evidence supporting the proposition that significant educational benefits accrued from student participation in a diverse classroom.[291] In this respect, the Law School was able to point to concessions by the petitioner and the United States (as amicus) that student body diversity was an important goal because of its educational benefits.[292] This was important because the Court accepted that the only justification the Law School advanced for its admissions program was “obtaining ‘the educational benefits that flow from a diverse student body.’”[293] And the Court deferred to “[t]he Law School’s educational judgment that such diversity is essential to its educational mission.”[294]

In addition, the Law School exploited certain advantages that put its controversial race-conscious admissions policy in a conservative light. Arguing that its diversity goal supported national policy, the Law School noted that “Congress has repeatedly made specific findings that ‘elimination of racial isolation has significant educational benefits,’ even in the absence of any prior discrimination or remedial purpose, when authorizing federal financial assistance for local school districts seeking to eliminate both de jure and merely de facto segregation in their schools.”[295] Additionally, the Law School cited the Government’s acknowledgment that “keeping undergraduate and graduate institutions open to ‘people of all races and ethnicities’ is ‘a paramount government objective.’”[296] Finally, the Law School enjoyed the support of retired military and civilian leaders of the armed forces who argued, in an amicus brief relied on by the Court, that a “highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle [sic] mission to provide national security.”[297] In light of these advantages, it is not surprising that the Law School chose to place strong and repeated emphasis on its mission.

The context of the litigation in FAIR was decidedly different. In FAIR, the focus of attention was not the broad scope of the Equal Protection Clause, which could afford an opportunity to argue for the importance of, and judicial deference to, the law schools’ mission. Instead, FAIR found itself in opposition to a specific statutory mandate that effectively left no room for interpretation[298] and was forced to seek protection under one or more of the specific rights articulated in the Court’s First Amendment jurisprudence. In addition, while the Law School was able to argue that its admissions program supported Government policy, FAIR had to defend the law schools in their stance of protest against enforcement of a federal statute that Congress passed to aid military recruitment.[299] Thus, in the context of the litigation FAIR had less opportunity than the University of Michigan Law School did to argue the relevance of the law school mission.

Moreover, FAIR’s characterization of the law school mission was challenged by some of the Government’s amici with potentially significant consequences. These amici argued that the law school mission should be understood as devoted to debate and the exchange of ideas[300]—precisely the notion of the academic mission that Justice Powell invoked in holding that U.C. Davis’ diversity goal was “of paramount importance in the fulfillment of its mission.”[301] They further argued that the law schools in FAIR were arguing for their right to advocate a particular viewpoint, which implied that the case must turn on whether this viewpoint was entitled, under specific First Amendment doctrines, to the relief the law schools sought. In its brief, FAIR essentially accepted this assessment and made the best arguments it could in favor of the law schools’ teaching and protest goals.[302] In doing so, it emphasized the normative character of law schools and the moral principles on which their stance was based, and it argued that “issues of justice are at the core of [the law schools’] mission . . . .”[303]

But this appeal for acknowledgment of the law schools’ mission went unheeded. The Court took the subsidiarity and mission-related concept of deference away from the law schools and accorded deference to Congress. It also rejected FAIR’s arguments on the First Amendment issues, largely because of the differing litigation contexts of these two cases: in Grutter, the law school as assisting in national goals prevailed, while in FAIR, the law school as an enclave of protest and agitation for change lost out.[304]

V. Public Good in Grutter and Fair

Under subsidiarity analysis, an intermediary body should be accorded scope to pursue initiatives consistent with its mission or function, subject to the oversight of political authority exercising its responsibility to coordinate such actions with the rest of society and with a view to the public good. In Grutter and FAIR, the University of Michigan Law School and FAIR made arguments that their challenged policies served the public good, with the context of the litigation in each case offering differing possibilities for such arguments.

A. The Public Good in Grutter

In its brief, the University of Michigan Law School repeatedly made strong claims for the ways in which its mission, combining selectivity and diversity, benefited the public good. As noted above, the Law School argued that its diversity program was designed to help students “to bridge racial divides, [to] work sensitively and effectively with people of different races, and [to] overcome the initial discomfort of interacting with people visibly different from themselves . . . .”[305] The Law School argued that these goals of its program were especially important in the training of lawyers because they promote “mutual respect and sympathetic engagement with the experiences of other people that are basic to the mature and responsible practice of law.”[306]

With respect to the joining of its selectivity and diversity goals, the Law School argued that its mission of training elite students to become national leaders was grounded in promoting “reflection about many of our most fundamental public questions, such as . . . the effects of religious, racial and gender intolerance in our culture.”[307] Against the backdrop of American society as multi-racial and the commitment of American institutions to racial understanding, the Law School’s arguments for its program were easily understood as intended to promote the public good.

The Court found that the educational benefits associated with a diverse student body were “substantial” and supported by several expert studies.[308] In addition, the Court accepted the arguments advanced by the Law School’s amici that diversity and cross-cultural understanding were essential for workers in a global marketplace and for the U.S. military’s officer corps.[309] In this context, the Court noted that it had “repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to ‘sustaining our political and cultural heritage’ with a fundamental role in maintaining the fabric of society.”[310] The Court also pointed out that, in its amicus brief, the United States “affirm[ed] that ‘[e]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.’”[311]

Particularly important in this connection was the Law School’s argument that the combination of diversity and selectivity as equal components of its mission was necessary if the American public was to have confidence in the country’s legal institutions. For this argument, the Law School relied on its claim that an adverse decision by the Court would significantly reduce the number of minority lawyers being educated by institutions that train the majority of federal judges, prosecutors, law clerks, and associates at leading law firms.[312] The Law School argued that such a reduction raised “a chilling prospect”[313] because in a racially diverse society,

the public confidence in law enforcement and legal institutions so essential to the coherence and stability of our society will be difficult to maintain if the segments of the bench and bar currently filled by graduates of those institutions again become a preserve for white graduates, trained in isolation from the communities they will serve.[314]

These arguments grounded in the public good were successful in the litigation. Accepting that elite law schools train a significant percentage of political leaders, the Court also accepted the Law School’s “public confidence” argument.[315] In doing so, the Court introduced an additional notion related to the public good—the concept of legitimacy[316]—associating this notion with public perception of elite law school admissions policies. The Court found that “[i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”[317] Adopting the Law School’s reference to public confidence, the Court further found that “[a]ll members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.”[318] These findings provided the basis for the Court’s constitutional conclusion in support of the Law School’s linkage of diversity and selectivity as components of its mission.[319]

B. The Public Good in FAIR

As with the concept of mission, FAIR’s ability and opportunity to argue for benefits to the public good resulting from law schools’ anti-discrimination policy was constrained by the contours of the litigation and by the fact that this policy was opposed to federal law. FAIR had to defend its member law schools in their opposition to a specific statutory mandate and was compelled to argue for a right of protest against the Government, while resorting to the Constitution for protection of this right.

Accordingly, whatever strength FAIR could muster for a public good argument derived principally from reliance on, and advocacy of, the moral principles that underlayed the law schools’ position—the principle of not discriminating on the basis of sexual orientation and the principle of not assisting those who do so discriminate.[320] Much of FAIR’s argument on this point was devoted to the law schools’ goal of teaching these principles to its students and community.[321] But FAIR also sought to give this moral teaching additional public importance in a way that followed the model provided by Michigan Law School and accepted by the Grutter Court. FAIR argued that through their anti-discrimination policy, “law schools . . . teach the leaders of tomorrow that it is wrong to abet invidious discrimination of any sort.”[322] Emphasizing this point, FAIR argued that through their moral teaching, law schools “aspire to shape future lawyers who can profoundly change our society, its mores and values, . . . and who will urge their visions of justice on society at large.”[323] Thus, like the University of Michigan Law School, FAIR argued that law schools’ educational mission included teaching future leaders of society and of the legal profession about the requirements of living in a diverse society.

The Court in FAIR did not explicitly discuss the issue of the public good as related to the arguments of either FAIR or of the Government. The Court did, however, refer to the Constitutional provisions supporting Congress’ authority to enact the Solomon Amendment[324] and stated that, even when such enactments are subject to First Amendment challenge, “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies.”[325] The Court’s acceptance of the bearing of this authority thus placed in the background the military’s role in serving the public good.

In analyzing FAIR’s arguments, the Court did not disparage the law schools’ anti-discrimination policy or deny that this policy might contribute to the public good. The Court concluded, however, that whatever the value the law schools’ position might have for the public good, “[l]aw schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds.”[326]

C. Analysis

The difference of the litigation context in Grutter and FAIR had important consequences for the ability of the University of Michigan Law School and of FAIR to argue that the policies they were defending served the public good. The Law School and its amici cited several expert studies to support the proposition that its diversity admissions program had educational benefits. The Grutter Court accepted these studies and found not only that the educational benefits of diversity were substantial for academic institutions, but also that diversity and diversity-sensitivity were essential in the corporate workforce and in the military officer corps.[327] In addition, the Court endorsed the Law School’s argument that diversity was essential to its training national leaders in order to maintain public confidence in established institutions.[328]

FAIR also argued that law schools’ anti-discrimination policy was important in their training of future leaders of society and the legal profession. But it did so in the context of the law schools’ protest against federal law and the military’s recruitment policy. Because this protest was lodged in the context of a “simmering cultural battle,”[329] FAIR had to argue that the law schools it represented were training leaders, not to advance accepted national policy and maintain confidence in established institutions, but to “profoundly change our society, its mores and values . . . .”[330] So, once again, while the University of Michigan Law School was able to give its arguments for the public good a conservative cast, FAIR was in the position of arguing the potential and uncertain benefits of protest in an effort to change society’s values. Thus, whereas the Law School was successful in persuading the Court that a decision against diversity threatened the loss of benefits currently enjoyed by institutions throughout American society, FAIR had to rest its public good argument to a large extent on the uncertain outcome of a “raging national debate.”[331]

VI. The Role of the First Amendment in Grutter and Fair

While not necessarily a component of subsidiarity analysis, the role of the First Amendment’s protection of freedom of speech in Grutter and FAIR deserves consideration because of its differing impact on the two cases in ways related to the concept of mission and to subsidiarity analysis. Of particular interest here is the First Amendment-related concept of academic freedom, which the Supreme Court has at times found to offer general constitutional support for academic institutions.[332] In Grutter, although the First Amendment was not explicitly at issue, the Court nevertheless invoked academic freedom in holding that the Law School’s mission-based interest in a racially diverse student body was compelling for purposes of Equal Protection Clause adjudication.[333] In FAIR, the litigation turned on application of certain First Amendment rights which the Court decided adversely to FAIR, despite the fact that FAIR invoked academic freedom and argued for goals that were arguably related to the mission of law schools.[334]

A. The First Amendment in Grutter

Despite the fact that in advocating its position in Grutter the Law School followed Justice Powell’s Bakke opinion in several important respects,[335] the Law School declined to exploit an important point that Justice Powell relied on to support his conclusion that student body diversity constituted a compelling interest. Justice Powell had, in this connection, invoked the First Amendment as protective of academic freedom in holding that diversity was important to a professional school’s mission.[336] The Law School, on the other hand, stressed the importance of diversity to its mission without making an explicit argument that this mission was grounded in academic freedom.[337]

Nevertheless, the Court in Grutter made extended reference to Justice Powell’s opinion on this point. The Court noted that Justice Powell’s approval of a diversity-based admissions policy in the context of higher education was grounded in academic freedom, which according to Justice Powell, “long has been viewed as a special concern of the First Amendment.”[338] Calling attention to the public good served by academic freedom, the Court quoted Justice Powell’s assessment that the “‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.”[339] The Court went on to note Justice Powell’s conclusion that in enrolling a diverse student body that will contribute effectively to the exchange of ideas valued by the First Amendment, an institution of higher learning “seeks ‘to achieve a goal that is of paramount importance in the fulfillment of its mission.’”[340]

After reviewing Justice Powell’s opinion, the Court commenced its own Equal Protection analysis stating “[w]e have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.”[341] At this point, the Court again cited Justice Powell’s statement that by grounding its argument for a diverse student body on the “‘robust exchange of ideas,’ a university ‘seeks to achieve a goal that is of paramount importance in the fulfillment of its mission.’”[342] While not itself explicitly invoking academic freedom, the Grutter Court read Justice Powell’s opinion as invoking the Court’s cases “recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy.”[343] On this basis, the Court stated that its “conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School’s proper institutional mission . . . .”[344]

Although the only Constitutional question in the case was the application of the Equal Protection Clause and the Law School did not make an academic freedom argument in its brief, the Grutter Court invoked academic freedom and autonomy for support of the Law School’s mission and for its conclusion that its mission-related diversity goal was compelling under Equal Protection Clause analysis.

B. The First Amendment in FAIR

Unlike the Grutter case, where the First Amendment was not explicitly at issue, FAIR’s challenge to the Solomon Amendment was based explicitly on claims that the Amendment violated the doctrine of unconstitutional conditions by violating specific rights protected by the First Amendment.[345] In its brief, FAIR stated the “Question Presented” as whether “the court of appeals [was] correct that the Solomon Amendment unconstitutionally conditions [federal] funds on [law] schools’ relinquishment of their First Amendment rights?”[346]

1. FAIR’s Arguments on the First Amendment Issues

FAIR’s brief was devoted primarily to detailed arguments citing Supreme Court case law in support of each of its claims. These were that the Solomon Amendment violated law schools’ right to be free from compelled speech advocating the discriminatory recruitment message of the military,[347] their right to speak their own message in the most effective way (by refusing to assist discrimination),[348] and their right not to associate with the military as a discriminatory employer.[349] FAIR argued that these First Amendment violations demonstrated that the Solomon Amendment’s funding restriction constituted an unconstitutional condition.[350]

While thus constrained to devote itself primarily to the best arguments it could make on these specific First Amendment issues, FAIR was not unmindful of the line of Supreme Court cases stating the importance of academic freedom that Justice Powell cited in Bakke[351] and that the Court, adopting Justice Powell’s approach, also cited in Grutter.[352] In its brief, prior to making its arguments on the ways the Solomon Amendment allegedly violated law schools’ First Amendment rights, FAIR presented a three-paragraph review and argument on this line of cases to provide, in its terms, “the backdrop of this First Amendment clash.”[353]

That FAIR chose to place the academic freedom cases merely as a “backdrop” to its arguments may well have been due to the way FAIR’s reliance on these cases was treated by the district court and by the Third Circuit. The district court found that “[t]he difficulty in evaluating the constitutional significance of Plaintiffs’ claim to academic freedom is that the precise contours of this First Amendment interest are somewhat unclear.”[354] Expanding on this point, the court stated that “[t]he concept of academic freedom seems to be inseparable from the related speech and associational rights that attach to any expressive organization or entity.”[355] Accordingly, the district court conducted its analysis on the premise that “the right to academic freedom is not cognizable without a foundational free speech or associational right.”[356] Thus, the court stated at the outset that “[i]f the Solomon Amendment violates Plaintiffs’ right to academic freedom, it is because it also intrudes on their rights to free speech and expressive association.”[357] The Third Circuit, for its part, referred to the academic freedom cases only in a footnote to support its holding in favor of FAIR’s expressive association argument.[358]

Nevertheless, testing the Supreme Court’s willingness to rely on the academic freedom cases, FAIR quoted Kleindienst v. Mandel[359] for the Court’s recognition that First Amendment rights are “nowhere more vital than in our schools and universities.”[360] Throughout the remainder of this section of its brief, FAIR tailored its review of the Court’s academic freedom cases in accord with the fact that the law schools it represented were in a stance of protest. FAIR asserted that “[t]he academy has traditionally been the launching pad for challenges to government orthodoxy,”[361] which, FAIR suggested, “is why the courts have routinely subjected infringements on speech and expressive association to especially heightened scrutiny in that context.”[362] FAIR argued that academic freedom’s protection of protest should be accorded to law schools in particular “in light of the role lawyers have historically played in amplifying protests against government policies and advancing minority interests against politically entrenched majorities.”[363] Accordingly, FAIR argued that academic freedom should trump the Government’s law and its opposition to the law schools’ decision on military recruitment because “academic freedom means that [this] decision is the law school’s to make, free from government interference.”[364]

The general conclusion FAIR drew from this review was that academic freedom accords the academy a “unique societal role,”[365] with First Amendment rights that “are arguably broader than the rights of other sorts of private institutions.”[366] FAIR summed up by asserting that because constitutional protection of expressive associations “is especially heightened in the legal academy,” the law schools’ “agitation for change deserves at least as much protection in this simmering cultural battle as the efforts of Boy Scouts, veterans, or others bent on preserving the status quo.”[367] Thus, FAIR’s general academic freedom argument stressed the importance of the right of protest and what it regarded as the special role of the legal academy in protest and social change.

2. The Court’s Opinion in FAIR on the First Amendment Issues

FAIR’s appeal for recognition of the Court’s cases expressing heightened concern for academic freedom was unsuccessful. After noting at the outset that FAIR’s mission includes the promotion of academic freedom,[368] the Court never referred to this concept in its opinion and, unlike in Bakke and Grutter, it did not review the line of cases mentioning academic freedom.

As discussed above, the Court rejected the basic premise of FAIR’s arguments in holding that the Solomon Amendment regulates the conduct of law schools, not their speech.[369] Holding against FAIR on this fundamental point, the Court’s treatment of FAIR’s specific First Amendment arguments was notably dismissive in character. With respect to FAIR’s compelled speech argument, the Court found that “[t]he compelled speech to which the law schools point is plainly incidental to the Solomon Amendment’s regulation of conduct.”[370] The Court stated that “[c]ompelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”[371] The Court added that “[n]othing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.”[372]

FAIR had also argued that law schools, in refusing to assist and protesting against the military’s recruitment policy, should be accorded First Amendment protection as expressive associations because this refusal must be understood as an expression of their moral position.[373] The Court rejected this argument as well, finding that “[t]he expressive component of a law school’s actions is not created by the conduct itself but by the speech that accompanies it.”[374] Again rejecting FAIR’s argument with a back-of-the-hand, the Court stated that “[i]f combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into ‘speech’ simply by talking about it.”[375]

Finally, the Court also rejected FAIR’s argument that the Solomon Amendment violated law schools’ freedom of association by forcing them to associate with military recruiters on campus.[376] For this argument, FAIR relied in large part on the Court’s decision in Boy Scouts of America v. Dale,[377] in which the Court held that a law that would require the Boy Scouts, contrary to their policy, to accept a gay man as an assistant scoutmaster violated the Scouts’ freedom of association.[378] Finding a critical distinction, the Supreme Court rejected this argument as well, because unlike the scoutmasters in Dale, “recruiters are not part of the law school” but are “outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association.”[379] The Court concluded that “[a] military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message.”[380]

In summing up its rejections of FAIR’s various First Amendment arguments, the Court spoke of these arguments somewhat disparagingly. The Court concluded that FAIR “attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect.”[381] Finding that the Solomon Amendment affected expression only “incidentally,” the Court expressed the view that

the law schools’ effort to cast themselves as just like the schoolchildren in Barnette, the parade organizers in Hurley [v. Irish-American Gay, Lesbian & Bisexual Group of Boston],[382] and the Boy Scouts in Dale plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents.[383]

C. Analysis

The role played by the First Amendment in Grutter and FAIR appears curious in certain respects, given the case law suggesting that the academy enjoys special protection under the First Amendment. Despite the fact that in Grutter, the First Amendment was not explicitly at issue and that the Law School was challenged by an individual asserting her explicit right under the Equal Protection Clause, the Court invoked academic freedom to conclude in favor of the Law School. On the other hand, despite the fact that FAIR invoked academic freedom and relied on specific First Amendment rights in challenging the Solomon Amendment, the Court in FAIR unanimously rejected these arguments.

Fundamental to these differing outcomes was the Supreme Court’s case law noting the importance of the First Amendment’s concern for academic freedom. In Grutter, the Court quoted Justice Powell’s Bakke opinion on academic freedom and invoked academic autonomy to support the Law School’s arguments for the importance of its diversity admissions policy.[384] In this context, academic freedom, not being an explicit issue in the case, constituted a background consideration that the Court could invoke for its general importance and to buttress the Law School’s claims for its mission.

In FAIR, on the other hand, the litigation turned on specific First Amendment rights. The Court’s attention was focused on FAIR’s arguments for these rights, the applicability of which was subject to detailed and vigorous challenge by the Government. FAIR was thus in the position of invoking academic freedom merely as—in its own terms—a “backdrop” to its arguments alleging specific First Amendment violations. In this light, the weight of an argument for academic freedom was necessarily diminished, as attention was devoted to the specific claims advanced by FAIR.

Accordingly, the Grutter Court ruled in favor of the Law School holding that academic freedom provided the academy “a special niche in our constitutional tradition.”[385] But FAIR’s assertion, stated as a “backdrop”[386] to its specific First Amendment arguments, that academic freedom accorded law schools a “unique societal role”[387] was unsuccessful in supporting its arguments.

VII. Conclusion

The legal contours of Grutter and FAIR presented very different possibilities for arguments reflecting subsidiarity concerns. In Grutter, the posture and background of the litigation provided the University of Michigan Law School with several advantages in arguing for the significance of its mission to the issue before the Court. Most notably, in Bakke Justice Powell had found a professional school’s interest in student body diversity—the only interest advanced by the Law School in Grutter—compelling under Equal Protection Clause analysis. In doing so, he grounded this interest in the concept of the academic mission, which he associated with promotion of the robust exchange of ideas important to academic freedom.

Justice Powell’s Bakke opinion thus provided the University of Michigan Law School with an established model, which it followed, for the argument that its race-conscious admissions policy was integral to its mission. Again following Justice Powell’s lead, the Law School argued that its mission provided benefits for the public good through training law students for leadership in a racially diverse society, which in turn would promote public confidence in the legal and political system. The Grutter Court found the academic context to be important in interpreting the Equal Protection Clause and accepted the Law School’s characterization of its mission. Following Justice Powell, the Court found that the Law School’s mission-centered interest in diversity brought into play the concept of academic autonomy and that the Law School’s program provided substantial benefits for the public good, including fostering public perception of the legitimacy of the country’s legal and political institutions.

FAIR, on the other hand, had to advocate for its member law schools in their opposition to the status quo and to a specific statute passed by Congress in support of military recruitment. This brought into play Congress’ Constitutional authority with respect to the military, which posed FAIR with a potent rival for judicial deference and for judicial acknowledgment of the parties’ contributions to the public good. In addition, FAIR’s challenge to the Solomon Amendment had to seek protection for the law schools under specific First Amendment doctrines that had been invoked as well by non-academic institutions, thus diminishing the prominence that FAIR could give to the academic mission. In advancing its arguments for the public good served by the law schools’ anti-discrimination policy, FAIR had to argue for the training of leaders who could change, rather than reinforce, the nation’s mores and values.

In line with the above considerations, the cases also involved significantly different possibilities for coordination of the law schools’ initiatives with the rest of society and with the law. In Grutter, the Court in essence accepted the Law School’s argument that its mission served goals underlying national law and policy against racial discrimination. The Court found support for this conclusion in the U.S. Government’s own statement that people of all races must be insured access to public institutions of higher education. Moreover, the Law School argued that Justice Powell’s opinion had been relied on for decades by the academy and that because of this opinion a narrowly-tailored race-conscious admissions program conformed to the law. The coordination issue was also made easier for the Law School because its diversity goal was endorsed and followed not only by major corporations but by retired military leaders who argued that diversity and selectivity were important to military recruitment.

In FAIR, on the other hand, the law schools argued not only for their right to teach principles opposed to the law but for their right to avoid assisting military recruitment as required by Congress. The non-assistance claim presented a serious problem for coordinating the law schools’ position with Congress’ Constitutional authority with respect to the military. The Court in FAIR gave deference to Congress on this point and denied the law school’s non-assistance claim, while noting that under the Solomon Amendment law schools retained the right (which would presumably be protected by the First Amendment) to teach that the military’s recruitment policy is wrong.

For the above reasons, the Court’s decision in FAIR ought not to be read as repudiating the subsidiarity concerns reflected in Justice Powell’s opinion in Bakke and the Court’s majority opinion in Grutter.

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*. Westerfield Fellow, Loyola University School of Law / New Orleans; Ph.D. Fordham University (1989); J.D. Columbia University Law School (1996). The author wishes to thank Loyola Law School for a summer research grant that supported the writing of this paper.

[1]. See Encyclical Letter from Pope Pius XI to Our Venerable Brethren, the Patriarchs, Primates, Archbishops, Bishops, and other Ordinaries in Peace and Communion with the Holy See, and Likewise to all the Faithful of the Catholic World (May 15, 1931), available at http://www.papalencyclicals.net/Pius11/PiiQUADR.HTM (last visited Feb. 19, 2007) (referred to as, Quadragesimo anno, On Reconstruction of the Social Order); Michael E. Allsopp, Principle of Subsidiarity, in The New Dictionary of Catholic Social Thought 927-29 (Judith A. Dwyer ed., 1994).

[2]. See Treaty Establishing the European Community, Feb. 7, 1992, art. 3b, 63 Common Market L. Rep. 573, 590 (1992).

[3]. See, e.g., J. Verstraeten, Solidarity and Subsidiarity, in Principles of Catholic Social Teaching 135 (David A. Boileau ed., 1998) (noting that this is one component of the principle, which also has other components).

[4]. See, e.g., George A. Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 Colum. L. Rev. 331, 403-48 (1994) (evaluating the extent to which the subsidiarity principle as embodied in European Community law is reflected in the United States Constitution, Congressional legislation, and U.S. Supreme Court opinions); David P. Currie, Subsidiarity, 1 Green Bag 2d 359, 364 (1998) (“In the United States the Constitution says nothing about subsidiarity, but it is widely followed in practice.”); Robert K. Vischer, Subsidiarity as a Principle of Governance: Beyond Devolution, 35 Ind. L. Rev. 103, 123 (2001) (“From executive orders requiring that a proposed federal action be weighed against the efficacy of state action, to congressional restraint in areas of state regulatory competence, to judicial enforcement of state-federal boundaries, much of this country’s political and legal landscape comports fully with subsidiarity’s ideal.” (footnotes omitted)).

[5]. See Peter Widulski, Bakke, Grutter, and the Principle of Subsidiarity, 32 Hastings Const. L.Q. 847, 852 (2005).

[6]. 438 U.S. 265 (1978).

[7]. 539 U.S. 306 (2003).

[8]. U.S. Const. amend. XIV, § 1.

[9]. Bakke, 438 U.S. at 313; Grutter, 539 U.S. at 328-29.

[10]. Bakke, 438 U.S. at 312-13; Grutter, 539 U.S. at 328-33.

[11]. Bakke, 438 U.S. at 314-15, 319 n.53 (expressing a concern against “judicial interference in the academic process”); Grutter, 539 U.S. at 328, 333.

[12]. 126 S. Ct. 1297, 1305 (2006).

[13]. Id. at 1304 & n.3.

[14]. Id. at 1302-03.

[15]. Brief for the Respondents at 3-4, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[16]. See FAIR, 126 S. Ct. at 1313.

[17]. See, e.g., Brief for the Respondents at 22-23, 30-31, 33-34, 42, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[18]. Id. at 22-23, 30.

[19]. Id. at 3, 15.

[20]. Id. at 20.

[21]. Id. at 19.

[22]. Id. at 29.

[23]. Vischer, supra note 4, at 116.

[24]. See, e.g., id. at 108-10.

[25]. See, e.g., id. at 108-09 & n.30.

[26]. See, e.g., supra note 4. See also Stephen Gardbaum, Rethinking Constitutional Federalism, 74 Tex. L. Rev. 795, 832-36 (1996) (comparing the concept of subsidiarity in the European Union and the United States).

[27]. See supra note 2. Article 3b states:

In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

Id.

[28]. Encyclical Letter from Pope Pius XI to the Patriarchs, Primates, Archbishops, Bishops, and other Ordinaries, supra note 1.

[29]. John Finnis, Natural Law and Natural Rights 147 (1980) (emphasis in original).

[30]. Id.

[31]. Encyclical Letter from Pope Pius XI to the Patriarchs, Primates, Archbishops, Bishops, and other Ordinaries, supra note 1.

[32]. Catechism of the Catholic Church ¶ 1883 (1994).

[33]. Id. Expanding on this point, Finnis states that the “concern of particular persons and groups for individual goods, for particular common goods and for particular aspects of the over-all common good, will enhance the over-all common good only if the resulting particular options are subject to some degree of co-ordination.” Finnis, supra note 29, at 233. When this is not possible, “the law may, for good reasons, nullify” the acts of individuals and intermediary bodies pursuant to the political order’s “moulding, subsidiary function” of assisting them in promoting the common good. Id. at 292.

[34]. John Paul II, Letter to Families § 16 (1994) (emphasis added).

[35]. Id.

[36]. Finnis, supra note 29, at 233.

[37]. This article is particularly focusing on the avoidance of too much political intrusion in the context of higher education.

[38]. For examination of other contexts in which Supreme Court decisions or concurring opinions might be viewed as reflecting subsidiarity concerns, see, e.g., Bermann, supra note 4, at 418-21; Currie, supra note 4, at 362; Richard W. Garnett, Taking Pierce Seriously: The Family, Religious Education, and Harm to Children, 76 Notre Dame L. Rev. 109, 143-46 (2000); Kirk A. Kennedy, Reaffirming the Natural Law Jurisprudence of Justice Clarence Thomas, 9 Regent U. L. Rev. 33, 33 (1997).

[39]. See, e.g., Regents of University of Michigan v. Ewing, 474 U.S. 214, 215 (1985) (invoking academic autonomy to support the University of Michigan against a due process challenge to its dismissal of a graduate student); Board of Regents v. Southworth, 529 U.S. 217, 221 (2000) (invoking the academic mission to support the University of Wisconsin against a First Amendment challenge to its compulsory student activity fee).

[40]. For a more extensive argument on this point, see Widulski, supra note 5.

[41]. See Brief for the Respondents at 10-14, 18, 48-49, Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006) (No. 04-1152). The Third Circuit found in favor of FAIR on this point. See FAIR v. Rumsfeld, 390 F.3d 219, 235, 245 (3d Cir. 2004).

[42]. Regents of the Univ. of California v. Bakke, 438 U.S. 265, 275 (1978).

[43]. See id. at 412-21.

[44]. See id. at 325-26.

[45]. Id. at 314.

[46]. Id. at 319-20. Justice Powell did, however, allow universities to be race conscious in their admissions policies. Id. at 320.

[47]. Id. at 312.

[48]. Id. at 313.

[49]. Id. at 305-06 (quoting Brief for Petitioner at 32, Bakke, 438 U .S. 265 (No. 76-811)).

[50]. Id. at 306.

[51]. See, e.g., Brief for Petitioner at 2-3, 9, 13, 19, 21, 28, 59-60, 78, Bakke, 438 U.S. 265 (No. 78-811).

[52]. Bakke, 438 U.S. at 306.

[53]. Id. at 306. See, e.g., Brief for Petitioner at 21-25, Bakke, 438 U.S. 265 (No. 78-811). See also id. at 32 (where the goal of “reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession” is listed as the first of the ends pursued by the medical school’s admissions program).

[54]. Brief for Petitioner at 2, Bakke, 438 U.S. 265 (No. 78-811)(emphasis added).

[55]. Id. at 2, 32. “Societal discrimination” is the second purpose on Justice Powell’s list. Bakke, 438 U.S. at 306.

[56]. Brief for Petitioner at 2, Bakke, 438 U.S. 265 (No. 78-811).

[57]. Id. at 3 (citations omitted) (emphasis added).

[58]. Id.

[59]. See id. at 11-12 (where the University implies that “achieving racial diversity in schools” is among the “benefits” of effectively addressing societal discrimination).

[60]. Id. at 8.

[61]. Id. at 9.

[62]. Id.

[63]. Id.

[64]. Id. at 13 (emphasis added).

[65]. Id. at 78 (emphasis added).

[66]. See Bakke, 438 U.S. at 305 (“We have held that in order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is ‘necessary . . . to the accomplishment’ of its purpose or the safeguarding of its interest.”).

[67]. See id. at 305-06.

[68]. See id. at 313.

[69]. See id.

[70]. See Brief for Petitioner at 2-14, Bakke, 438 U.S. 265 (No. 78-811) (failing to reference the concept of an academic mission).

[71]. See id. at 30, 39, 47. The University did not invoke its mission at all in its other briefs in the case. See Reply Brief for Petitioner, Bakke, 438 U.S. 265 (No. 76-811); Supplemental Brief for Petitioner, Bakke, 438 U.S. 265 (No. 76-811).

[72]. Brief for Petitioner at 29-30, Bakke, 438 U.S. 265 9No. 76-811).

[73]. Id. at 29.

[74]. Id. at 39. The Universities’ brief mentions that the choice the medical school made to use a specific numerical goal rather than a range “represents nothing more than a policy judgment about such matters as how much of the school’s limited resources should be devoted to the service of one among its many missions.” Id. at 47.

[75]. See id. at 39, 47.

[76]. Bakke, 438 U.S. at 311-12.

[77]. Id. at 314.

[78]. Id. at 312.

[79]. Id. at 312 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)).

[80]. Id. (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring)).

[81]. Id. at 313 (emphasis added). Justice Powell goes on to argue that diversity is as important in professional school education as in undergraduate education. See id. at 313-14.

[82]. See id. at 312-13 (arguing that academic freedoms, and by extension diversity goals, implicate the First Amendment).

[83]. See Edward N. Stoner II & J. Michael Showalter, Judicial Deference to Educational Judgment: Justice O’Connor’s Opinion in Grutter Reapplies Longstanding Principles, As Shown By Rulings Involving College Students in the Eighteen Months Before Grutter, 30 J.C. & U.L. 583, 611-13, 617 (2004) (arguing that deference to educational judgments informed Justice Powell’s Bakke opinion and that this opinion “strongly suggested that a careful and deliberate educationally-motivated approach to considering race as one of many factors would pass constitutional muster,” and that in such cases as Bakke and Grutter “the Supreme Court has selected higher education as the one unique community in our society eligible for such judicial deference.”).

[84]. Bakke, 438 U.S. at 309.

[85]. See supra notes 51-65 and accompanying text.

[86]. Brief for Petitioner at 9, Bakke, 438 U.S. 265 (No. 86-811) (emphasis added). The University noted that “[n]o central authority directed this effort.” Id.

[87]. Id. The University repeatedly called attention to the fact that its effort to address the effects of societal discrimination was undertaken voluntarily. See, e.g., id. at 2, 16, 32, 44, 59, 60, 62-66, 86.

[88]. Id. at 41.

[89]. Id. at 42.

[90]. See Bakke, 438 U.S. at 309.

[91]. Id.

[92]. Id. at 307.

[93]. Id. at 309.

[94]. Emphasizing the importance of this institutional limitation, Justice Powell states that “[t]o hold otherwise, would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whatever groups are perceived as victims of societal discrimination.” Id. at 310.

[95]. Id. at 312-13.

[96]. See supra notes 77-81 and accompanying text.

[97]. See supra notes 90-94 and accompanying text.

[98]. Bakke, 438 U.S. at 309.

[99]. Grutter v. Bollinger, 539 U.S. 306, 317 (2003).

[100]. Bakke, 438 U.S. at 320. This allowance was the result of Justice Powell’s judgment in combination with the opinion of the four Justices who found the admissions program at the University of California at Davis to be permissible. Id. at 379.

[101]. See id. at 421.

[102]. See id. at 314.

[103]. Grutter, 539 U.S. at 322 (noting a Circuit split on this issue).

[104]. See Brief for Respondents at 14-15, Grutter, 539 U.S. 306 (No. 02-241).

[105]. See Bakke, 438 U.S. at 305-06. Justice Powell found that UC Davis offered four such purposes, including student body diversity. Id.

[106]. See Grutter, 539 U.S. at 327-28. “Before this Court, as they have throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining ‘the educational benefits that flow from a diverse student body.’” (quoting Brief for Respondents at i, Grutter, 539 U.S. 306 (No. 02-241)).

[107]. See Grutter, 539 U.S. at 324 (stating that “Justice Powell approved the university’s use of race to further only one interest: ‘the attainment of a diverse student body.’”) (quoting Bakke, 438 U.S. at 311).

[108]. Brief for Respondents at 1, Grutter, 539 U.S. 306 (No. 02-241).

[109]. See id. at 31. This goal was argued by one of the Law School’s amici. See Brief of American Law Deans Ass’n as Amicus Curiae in Support of Respondents at 14-17, Grutter, 539 U.S. 306 (No. 02-241).

[110]. Brief for Respondents at 1, Grutter, 539 U.S. 306 (No. 02-241).

[111]. Id. (emphasis added).

[112]. In its brief, the Law School made explicit reference to its mission as an academic institution twenty times. Id. at 1, 2-5, 13, 25, 28-30, 33, 36-37, 50. As discussed above, UC Davis made only three unfocused references to its manifold missions. See supra notes 72-74 and accompanying text.

[113]. Brief for Respondents at 25, Grutter, 539 U.S. 306 (No. 02-241) (“The presence of minority students is also essential to the Law School’s educational mission in other ways.”); id. at 28 (“ [R]ace is relevant to a core mission of the Law School that is vitally important and plainly ‘legitimate.’”); id. at 28 (“The Law School’s desire for a diverse student body is at the very core of its proper institutional mission.”); id. at 29 (“Indeed, racial diversity is simply far more relevant to the core mission of a university or professional school than to virtually any other government endeavor.”); id. at 37 (“Finally, petitioner and the United States suggest that the Law School focus its admissions process on identifying those students, without regard to race, who have had the particular experiences and perspectives that the Law School regards as uniquely salient to its academic mission.”).

[114]. Id. at 21-26.

[115]. Id. at 25.

[116]. Id. at 2 (citations to the Court of Appeals Joint Appendix omitted).

[117]. See id. at 24 n.37.

[118]. Id. at 21-26 (arguing for this point extensively in Part I.C of the Law School’s brief).

[119]. See, e.g., id. at 26 (arguing that a critical mass of minority students is necessary for its educational goals). The Law School also argued that “‘critical mass’ is an educational concept.” See id. at 32 n.50.

[120]. Id. at 28.

[121]. Id. at 30 (emphasis added).

[122]. Id.

[123]. See id. at 1 (emphasizing the importance of academic selectivity to its mission).

[124]. See, e.g., Brief for the United States as Amicus Curiae Supporting Petitioner, at 13-14 Grutter, 539 U.S. 306 (No. 02-241) (asserting that a school may “discard facially neutral [admissions] criteria” in the interest of diversity). For the Law School’s characterization of the effect that lower admissions standards would have on its mission, see Brief for Respondents at 19-20, 33-38, Grutter, 539 U.S. 306 (No. 02-241) (arguing the school would be faced with “dramatic resegregation”).

[125]. Id. at 1 (emphasis added).

[126]. Id. at 2 (“The Law School is among the Nation’s leading law schools.”).

[127]. Id. at 2.

[128]. Id. (quotations omitted).

[129]. See, e.g., id. at 2, 4, 25-26.

[130]. Id. at 20.

[131]. Id. at 36.

[132]. Id. at 13 (emphasis added). See also id. at 8-9, 49.

[133]. See Regents of the Univ. of California v. Bakke, 438 U.S. 265, 307-10 (1975).

[134]. Brief for Respondents at 31, Grutter, 539 U.S. 306 (No. 02-241).

[135]. Id.

[136]. Brief for Petitioner at 78, Bakke, 438 U.S. 265 (no. 76-811).

[137]. See Lee C. Bollinger, A Comment on Grutter and Gratz v. Bollinger, 103 Colum. L. Rev. 1589, 1590-91 (2003).

[138]. Id. at 1591.

[139]. Id.

[140]. See id.

[141]. Brief for Respondents at 23, Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241).

[142]. Id. at 22-23.

[143]. Id. at 12.

[144]. Id. at 24.

[145]. Id. at 50.

[146]. See id.

[147]. See Grutter v. Bollinger, 539 U.S. 306, 343 (2003).

[148]. Id. at 328.

[149]. Id. at 327-28 (quoting Brief for Respondents at i, Grutter, 539 U.S. 306 (No. 02-241)).

[150]. Id. at 328.

[151]. Id. (emphasis added). With respect to deference, the Court stated that “[o]ur holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.” Id. at 328-329 (citing Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985); Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 96 n.6 (1978); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 319 n.53 (1975)).

[152]. Id. at 329-30.

[153]. Brief for Respondents at 32 n.50, Grutter, 539 U.S. 306 (No. 02-241).

[154]. Grutter, 539 U.S. at 330.

[155]. Id.

[156]. Id. In further support of the educational benefits of diversity, the Court cited and relied on arguments made in amicus briefs filed in support of the Law School. Id. at 330-31.

[157]. Id. at 331 (citing the Brief for Julius W. Becton, Jr. et al. as Amici Curiae in Support of Respondents, Grutter v. Bollinger, 539 U.S. 244 (2003) (No. 02-241, 02-516)).

[158]. Lee C. Bollinger, supra note 137, at 1594.

[159]. Id.

[160]. See Brief for Julius W. Becton, Jr. et al. as Amici Curiae in Support of Respondents at 7, 9, 12, 13, 22, 24, 30, Grutter, 539 U.S. 306 (No. 02-241) [hereinafter Brief for Julius W. Becton].

[161]. Grutter, 539 U.S. at 331 (emphasis added, except for “and” which was emphasized in the amicus brief) (quoting Brief for Julius W. Becton at 27, Grutter, 539 U.S. 306 (No. 02-241)).

[162]. Id. (emphasis added) (quoting Brief for Julius W. Becton at 29, Grutter, 539 U.S. 306 (No. 02-241)).

[163]. See Grutter, 539 U.S. at 332.

[164]. See Brief of Ass’n of American Law Schools as Amicus Curiae in Support of Respondents at 5-10, Grutter, 539 U.S. 306 (No. 02-241) (proffering evidence that “law schools, particularly ones with highly selective admissions processes, produce a significant proportion of high public officials”).

[165]. Grutter, 539 U.S. at 332.

[166]. Id. (citing Brief of the Ass’n of American Law Schools as Amicus Curiae in Support of Respondents at 5-6, Grutter, 539 U.S. 306 (No. 02-241).

[167]. Id. (citing Brief of the Ass’n of American Law Schools as Amicus Curiae in Support of Respondents at 6, Grutter, 539 U.S. 306 (No. 02-241). The Law School’s argument for the importance of selectivity was supported as well by other amici briefs. See, e.g., Brief of Amherst College et al. as Amici Curiae in Support of Respondents at 1-3, 5, Grutter, 539 U.S. 306 (No. 02-241 & 02-516); and Brief of American Law Deans Association as Amicus Curiae in Support of Respondents at 7-9, Grutter, 539 U.S. 306 (No. 02-241) (arguing that the Law School’s “[i]nterest in [s]elective [a]dmissions [s]tandards” is a constitutionally compelling interest).

[168]. Grutter, 539 U.S. at 340.

[169]. Id. (emphasis added).

[170]. Id. In this connection, the Court noted that in its amicus brief the Government argued for alternative, race-neutral admissions plans adopted by certain undergraduate institutions. See id. But the Court found that the Government failed to “explain how such plans could work for graduate and professional schools.” Id.

[171]. Id. (emphasis added).

[172]. These include funds provided by the Departments of Defense, Homeland Security, Transportation, Labor, Health and Human Services, and Education, the Central Intelligence Agency, and the National Nuclear Security Administration of the Department of Energy; but funding for student financial aid was exempted from the ban. 10 U.S.C.A. § 983(d)(1), (2) (2000 Supp. IV 2005).

[173]. Id. § 983(b).

[174]. Id.

[175]. See FAIR v. Rumsfeld, 291 F. Supp. 2d 269, 274-75 (D.N.J. 2003).

[176]. Id. at 274.

[177]. Id. at 322.

[178]. FAIR v. Rumsfeld, 390 F.3d 219, 246 (3d Cir. 2004).

[179]. Rumsfeld v. FAIR, 544 U.S. 1017 (2005).

[180]. See Grutter v. Bollinger, 539 U.S. 306, 324, 328-29 (2003); Brief for the Respondents at 29, 30-31, 49-50, Grutter, 539 U.S. 306 (No. 02-241).

[181]. See Brief for the Respondents at 3, Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006) (No. 04-1152). The brief also said that the district court “found that a law school’s antidiscrimination policy is critical to its expressive mission.” Id. at 15. In its Amended Complaint in the district court, FAIR did argue the law schools’ mission. See FAIR v. Rumsfeld, 291 F. Supp. 2d at 290 (stating that FAIR’s member law schools “recognize and agree that the non-discrimination policies of each of its members is central to their missions”). See also id. at 297.

[182]. Brief for the Respondents at 29, FAIR, 126 S. Ct. 1297 (No. 04-1152). FAIR articulated three such goals: choosing the most effective means of teaching what it regarded as a moral principle against discrimination, protesting the military’s recruitment policy, and protecting its students against discrimination in the campus environment. Id.

[183]. Id. at 2-3.

[184]. Id. at 3.

[185]. Id. (quotations omitted).

[186]. Id. (quotations omitted) (emphasis added).

[187]. Id. at 3.

[188]. Brief for Respondents at 14, 27, Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241).

[189]. See, e.g., id. at 29 & n.44, 33.

[190]. Compare id. at 14, 17, 33 (arguing that the Law School’s admissions policy is in accord with the Constitution generally) with Brief for the Respondents at 18-31, FAIR, 126 S. Ct. 1297 (No. 04-1152) (arguing that the Solomon Amendment violates the First Amendment rights of the Law School).

[191]. See Brief for Respondents at 1, Grutter, 539 U.S. 306 (No. 02-241) (stating that “the admissions program in use at [the Law School] does not violate the Equal Protection Clause”). See also id. at 21 (explaining that “Congress has repeatedly made specific findings that elimination of racial isolation has significant educational benefits, even in the absence of any prior discrimination or remedial purpose” (quotations omitted)).

[192]. See Brief for the Respondents at 2, 14, 17, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[193]. See id. at 3, 28, 32.

[194]. Id. at 1.

[195]. See Grutter, 539 U.S. at 324, 332.

[196]. See Brief for Respondents at 24, Grutter, 539 U.S. 306 (No. 02-241).

[197]. Brief for the Respondents at 3, FAIR, 126 S. Ct. 1297 (No. 04-1152) (emphasis added).

[198]. See Brief for Respondents at 20-21, Grutter, 539 U.S. 306 (No. 02-241).

[199]. Grutter, 539 U.S. at 332.

[200]. Brief for the Respondents at 3, FAIR, 126 S. Ct. 1297 (No. 04-1152). Indeed, later in its brief, FAIR asserted that “[t]he legal academy’s agitation for change deserves at least as much protection in this simmering cultural battle as the efforts of Boy Scouts, veterans, or others bent on preserving the status quo.” Id. at 21 (emphasis added).

[201]. See id. at 18-19, 28-29.

[202]. FAIR v. Rumsfeld, 390 F.3d 219, 233 n.13 (3d Cir. 2004); FAIR v. Rumsfeld, 291 F. Supp. 2d 269, 304-05 (D.N.J. 2003).

[203]. See Brief for the Respondents at 28-29, FAIR, 126 S. Ct. 1297 (No. 04-1152). FAIR’s argument that the law schools’ right to teach these principles in the most “effective” way—by putting them into practice on campus—recalls a similar point argued by the University of Michigan Law School. The Law School argued that the educational benefits it sought (such as improving cross-rational understanding and training future leaders for a racially diverse society) made the enrollment of a diverse and selective student body necessary for “effective” pursuit of its educational mission. See, e.g., Brief for Respondents at 2, 4, 13, Grutter, 539 U.S. 306 (No. 02-241).

[204]. Brief for the Respondents at 19-20, 29, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[205]. See id. at 1c, 1, 4-5, 21.

[206]. See, e.g., id. at 1-2, 6-7, 36.

[207]. Id. at 28 (emphasis added).

[208]. Id. at 4. This argument, that the antidiscrimination policy was most effectively taught not through books but by putting it into practice, recalls a similar point made by the Law School in its brief in Grutter. See Brief for Respondents at 24 n.37, Grutter, 539 U.S. 306 (No. 02-241).

[209]. Brief for the Respondents at 13-14, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[210]. Id. at 14.

[211]. Id. at 14, 29.

[212]. Id. at 14 (emphasis added).

[213]. Id. (emphasis added).

[214]. Id. at 29 (emphasis added).

[215]. Id. at 29. See also id. at 1 (referring to “one of the most divisive moral issues of our time”); id. at 21 (referring to “this simmering cultural battle”); id. at 24 (referring to “a controversy that is riling the nation”).

[216]. For FAIR’s many references to law school protest of the military’s recruitment policy, see, e.g., id. at 1, 8, 13, 16-17, 19, 20, 29, and 43 n.6. FAIR gave special attention to protest in Part I.B. of its brief. Id. at 28-29.

[217]. Id. at 18.

[218]. Id. at 19, 29-30.

[219]. Id. at 19, 29.

[220]. Id. at 29.

[221]. Id. (emphasis added).

[222]. By contrast, in an amicus brief supporting FAIR, the Association of American Law Schools (AALS) greatly relied on the law school mission in arguing that the non-discrimination goal was integral to this mission. The AALS argued that “[p]roviding a nondiscriminatory environment lies at the heart of the law school mission for the 166 AALS members . . .” Brief for the Ass’n of American Law Schools as Amicus Curiae in Support of Respondents at 15, Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006) (No. 04-1152) (emphasis added). Linking this goal to the First Amendment issues on which the case would turn, the AALS argued that “enactment and enforcement of nondiscriminatory recruiting policies are therefore integral to AALS member law schools’ expressive mission.” Id. at 18 (emphasis added).

[223]. Brief for the Respondents at 18, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[224]. The tenor of this approach appears again in the final section of its brief, when, in arguing that the Court ought not to defer to Congress, FAIR framed the issue as “about the military’s insistence on reaching beyond its own sphere to compel private organizations to reorganize themselves to accommodate and issue its message.” Id. at 50 (emphasis added). FAIR also stated that “[t]his sort of intrusion [by the military] into the civilian sector is precisely where judicial skepticism of Congress and the military is at its height . . . .” Id. (emphasis added).

[225]. Grutter v. Bollinger, 539 U.S. 306, 328-29 (2003).

[226]. Brief for the Respondents at 20, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[227]. 339 U.S. 629, 634 (1950).

[228]. Brief for the Respondents at 20, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[229]. 530 U.S. 640 (2000).

[230]. In Dale, the Supreme Court had to determine whether a state anti-discrimination law that would require the Scouts—contrary to their alleged mission—to accept a gay man as an assistant scoutmaster violated the Scouts’ First Amendment right of expressive association. See id.

[231]. Brief for the Respondents at 30, FAIR, 126 S. Ct. 1297 (No. 04-1152). For the Dale Court’s expression of deference to the association’s mission, see Dale, 530 U.S. at 653-54.

[232]. Brief for the Respondents at 30, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[233]. FAIR’s treatment of this issue is surprising in light of the fact that the Third Circuit, ruling in FAIR’s favor relied on Dale for judicial deference to an expressive association’s “view of what would impair its expression.” See FAIR v. Rumsfeld, 390 F.3d 219, 233 (3d Cir. 2004) (quoting Dale, 530 U.S. at 653).

[234]. See, e.g., Brief of Adm. Charles S. Abbott et al. as Amicus Curiae in Support of Petitioners at 23 & n.16, FAIR, 126 S. Ct. 1297 (No. 04-1152); Brief of the National Legal Foundation as Amicus Curiae in Support of Petitioners at 8-9, FAIR, 126 S. Ct. 1297 (No. 04-1152); Brief of Law Professors and Law Students as Amicus Curiae in Support of Petitioners at 6, FAIR, 126 S. Ct. 1297 (No.04-1152).

[235]. See, e.g., Brief of Adm. Charles S. Abbott et al. as Amicus Curiae in Support of Petitioners at 23 n.16, FAIR, 126 S. Ct. 1297 (No. 04-1152); Brief of the Judge Advocates Ass’n as Amicus Curiae in Support of Petitioners at 21, FAIR, 126 S. Ct. 1297 (No. 04-1152); Brief of Law Professors and Law Students as Amicus Curiae in Support of Petitioners at 6, FAIR, 126 S. Ct. 1297 (No.04-1152).

[236]. Brief of Law Professors and Law Students as Amicus Curiae in Support of Petitioners at 6, FAIR, 126 S. Ct. 1297 (No.04-1152) (emphasis added). Although making this statement at the outset of its brief, this group did not elaborate on it in its arguments, which focused on the technical First Amendment issues in the case. See id. at 6-9.

[237]. Brief of Adm. Charles S. Abbott et al. as Amicus Curiae in Support of Petitioners at 23 n.16, FAIR, 126 S. Ct. 1297 (No. 04-1152) (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)). In its principal brief, the Government also argued that “a part of the function of institutions of higher education is to expose students to a wide range of views, and students are accustomed to hearing visitors on campus whose views the university does not endorse.” Brief for the Petitioners at 20-21, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[238]. Brief of Adm. Charles S. Abbott et al. as Amicus Curiae in Support of Petitioner at 23 n.16, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[239]. See id. at 26.

[240]. Id. at 25 n.17.

[241]. Id. (emphasis added).

[242]. Id. (emphasis added). With respect to the concept of mission, the military group also stressed the military’s “mission to defend the nation.” Id. at 15. See also id. at 2, 13. It also argued for judicial deference to Congress’s judgment concerning the military mission. See id. at 14, 29.

[243]. Brief of the Judge Advocates Ass’n as Amicus Curiae in Support of Petitioners at 21, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[244]. See id.

[245]. Id. (referring to Grutter v. Bollinger, 539 U.S. 306, 327-34 (2003)).

[246]. Brief for the Respondents at 28-29, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[247]. Brief of the Judge Advocates Ass’n as Amicus Curiae in Support of Petitioners at 21, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[248]. Id.

[249]. Brief for the Respondents at 18, FAIR, 126 S. Ct. 1297 (No. 04-1152) (emphasis added).

[250]. Brief of the Judge Advocates Ass’n as Amicus Curiae in Support of Petitioners at 21, FAIR, 126 S. Ct. 1297 (No. 04-1152) (citing Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981)).

[251]. Id.

[252]. Id. (quoting Healy v. James, 408 U.S. 169, 180 (1972)).

[253]. Id. at 22.

[254]. See Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006). The vote was 8-0. Justice Alito, whose nomination to the Court was confirmed after the case had been argued, did not vote in the case. See id.

[255]. Id. at 1302 (quotations omitted).

[256]. Grutter v. Bollinger, 539 U.S. 306, 328 (2003) (emphasis added).

[257]. FAIR, 126 S. Ct. at 1306 (citing U.S. Const. art. I, § 8, cls. 1, 12-13).

[258]. Id. (quoting United States v. O’Brien, 391 U.S. 367, 377 (1968)).

[259]. Id.

[260]. Id. (quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981)).

[261]. Id.

[262]. Id.

[263]. See Brief for the Respondents at 49-50, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[264]. See id. at 49. For FAIR’s other references to the Government’s lack of evidence, see, e.g., id. at 10-14, 18, 48.

[265]. See FAIR v. Rumsfeld, 390 F.3d 219, 235 (3d Cir. 2004) (applying strict scrutiny analysis). See also id. at 244-45 (discussing an alternative analysis from United States v. O’Brian, 391 U.S. 367, 377 (1968).

[266]. Id. at 234-35. This point about alternatives was argued by FAIR in its brief. See Brief for the Respondents at 48, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[267]. FAIR, 126 S. Ct. at 1311 (referring to FAIR, 390 F.3d at 245).

[268]. Id.

[269]. Id. (referring to U.S. Const. art. I, § 8, cls. 12-13; Rostker v. Goldberg, 453 U.S. 57, 64-65) (1981). The Court stated this holding in analyzing the case under the O’Brien standard. See id.

[270]. Id. at 1307.

[271]. See Brief for the Respondents at 42, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[272]. See, e.g., id. at 16-17, 19.

[273]. See FAIR, 126 S. Ct. at 1312.

[274]. See Brief for the Respondents at 28-30, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[275]. Id. at 14 (quotations omitted).

[276]. FAIR, 126 S. Ct. at 1310.

[277]. Id. (citing Bd. of Educ. of Westside Cmty. Sch. (Dist. 66) v. Mergens, 496 U.S. 226, 250 (1990) (plurality opinion)).

[278]. Id.

[279]. See infra Part IV.E for a brief discussion of this analysis regarding these First Amendment Issues.

[280]. FAIR, 126 S. Ct. at 1309-10.

[281]. Id. at 1307. The Solicitor General stated that law schools opposed to the Solomon Amendment “could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests.” Transcript of Oral Argument at 25, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[282]. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978).

[283]. See Brief for Respondents at 12, 14, 16, 19, Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241).

[284]. See Grutter, 539 U.S. at 322.

[285]. See id. at 327.

[286]. Bakke, 438 U.S. at 314 (emphasis added).

[287]. Grutter, 539 U.S. at 327 (emphasis added) (citing Gomillion v. Lightfoot, 364 U.S. 339, 343-44 (1960)).

[288]. Id. (emphasis added).

[289]. Id. at 328.

[290]. Id.

[291]. See, e.g., Brief for Respondents at 24-25, Grutter, 539 U.S. 306 (No. 02-241).

[292]. See id. at 2, 3, 12, 20, 22.

[293]. Grutter, 539 U.S. at 327-28 (emphasis added) (citing to Brief for Respondents at i, Grutter, 539 U.S. 306 (No. 02-241)).

[294]. Id. at 328.

[295]. Brief for Respondents at 21, Grutter, 539 U.S. 306 (No. 02-241) (citing Emergency School Aid Act, Pub. L. No. 92-318, §§ 701-720, 86 Stat. 354 (1972); Magnet Schools Assistance Program, Pub. L. No. 98-377, §§ 701-712, 98 Stat. 1299 (1984)).

[296]. Id. at 22 (quoting Brief for the United States as Amicus Curiae in Support of Petitioners at 13, Grutter, 539 U.S. 306 (No. 02-241).

[297]. Grutter, 539 U.S. at 331 (quoting Brief for Julius W. Becton at 5, Grutter, 539 U.S. 306 (No. 02-241).

[298]. See Rumsfeld v. FAIR, 126 S. Ct. 1297, 1304-06 (2006).

[299]. See id. at 1302-03.

[300]. See, e.g., Brief of Adm. Charles Abbott et al. as Amicus Curiae in Support of Petitioners at 23 n.16, FAIR, S. Ct. 1297 (No. 04-1152); Brief of the Judge Advocates Ass’n as Amicus Curiae in Support of Petitioners at 21, FAIR, 126 S. Ct. 1297 (No. 04-1152); Brief of Law Professors and Law Students as Amicus Curiae in Support of Petitioners at 6, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[301]. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978). As discussed below (Part IV. A), the Grutter Court followed Justice Powell in this respect.

[302]. See Brief for the Respondents at 4, 13-14, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[303]. Id. at 3 (quotations omitted) (emphasis added).

[304]. See infra Part V.B.2.

[305]. Brief for Respondents at 25, Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241).

[306]. Id. at 2 (quotations omitted).

[307]. Id. (quotations omitted).

[308]. Grutter, 539 U.S. at 330.

[309]. Id. at 330-31.

[310]. Id. at 331 (emphasis added) (quoting Plyler v. Doe, 457 U.S. 202, 221 (1982)).

[311]. Id. at 331-32 (quoting Brief for the United States as Amicus Curiae in Support of Petitioners at 13, Grutter, 539 U.S. 306 (No. 02-241).

[312]. See Brief for Respondents at 20, Grutter, 539 U.S. 306 (No. 02-241).

[313]. Id.

[314]. Id. at 20-21. In an amicus brief supporting the Law School, the American Law Deans Association also relied on the idea of public perception to support the Law School’s argument that its admissions program served the public good. See Brief of American Law Deans Ass’n as Amicus Curiae in Support of Respondents at 12-14, Grutter, 539 U.S. 306 (No. 02-241). Reiterating the Law School’s point that race-blind admissions would significantly reduce minority enrollment in selective law schools, the Deans Association argued that such a reduction would be perceived as segregative “in the court of public opinion.” Id. at 6. Because of the importance of public opinion in a racially diverse society, the Deans Association stressed that “all law schools have a compelling interest in avoiding the appearance of deliberate racial exclusion.” Id. at 7.

[315]. Grutter, 539 U.S. at 332.

[316]. In its brief, while the Law School argued the “public confidence” point, it did not make an explicit argument that its admissions program was necessary for the “legitimacy” of the leaders it trained. See Brief for Respondents at 20-21, Grutter, 126 U.S. 306 (No. 02-241).

[317]. Grutter, 539 U.S. at 332.

[318]. Id.

[319]. Id. at 331-33.

[320]. See Brief for the Respondents at 19-28, Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006) (No. 04-1152).

[321]. See id. at 19.

[322]. Id. at 1 (emphasis added).

[323]. Id. at 3 (quotations omitted).

[324]. FAIR, 126 S. Ct. at 1306 (citing U.S. Const. art. I, § 8, cls. 1, 12-13).

[325]. Id. (quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981)).

[326]. Id. at 1307.

[327]. Grutter v. Bollinger, 539 U.S. 306, 330-31 (2003).

[328]. Id. at 332.

[329]. Brief for the Respondents at 21, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[330]. Id. at 3 (internal quotations omitted).

[331]. Id. at 29.

[332]. See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312-13 (1978); Healy v. James, 408 U.S. 169, 180-81 (1972); Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226 (1985). See also J. Peter Byrne, Academic Freedom: A “Special Concern of the First Amendment,” 99 Yale L.J. 251, 289-99 (1989).

[333]. Grutter, 539 U.S. at 342-43.

[334]. See FAIR, 126 S. Ct. at 1312-13.

[335]. See supra notes 104-109.

[336]. See Bakke, 438 U.S. at 312-13.

[337]. A group of law school deans who filed an amicus brief on behalf of the Law School did, however, make an argument strongly emphasizing the First Amendment as supportive of academic freedom. See Brief of Judith Green et al. as Amici Curiae in support of Respondents at 20-24, Grutter, 539 U.S. 306 (No. 02-241).

[338]. Grutter, 539 U.S. at 324 (quoting Bakke, 438 U.S. at 312).

[339]. Id. (quoting Bakke, 438 U.S. at 313 (quoting Keyishian v. Bd. of Regents of Univ. of N. Y., 385 U.S. 589, 603 (1967))).

[340]. Id. (quoting Bakke, 438 U.S. at 313).

[341]. Id. at 329 (emphasis added).

[342]. Id. (quoting Bakke, 438 U.S. at 313).

[343]. Id. (emphasis added).

[344]. Id.

[345]. See Brief for the Respondents at 16-19, Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006) (No. 04-1152).

[346]. Id. at i.

[347]. See id. at 21-28.

[348]. See id. at 28-30.

[349]. See id. at 30-35.

[350]. See id. at 35-41.

[351]. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312-13 (1978) (citing Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring); Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).

[352]. See Grutter v. Bollinger, 539 U.S. 306, 324, 329 (2003).

[353]. See Brief for the Respondents at 19, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[354]. FAIR v. Rumsfeld, 291 F. Supp. 2d 269, 302 (D.N.J. 2003).

[355]. Id.

[356]. Id. at 303.

[357]. Id.

[358]. See FAIR v. Rumsfeld, 390 F.3d 219, 233 n.13 (3d Cir. 2004) (stating that “[t]he Supreme Court’s academic freedom jurisprudence thus underscores the importance of Dale deference in our case.”).

[359]. 408 U.S. 753 (1972).

[360]. Brief for the Respondents at 19, Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006) (No. 04-1152) (quoting Kleindienst v. Mandel, 408 U.S. 753, 763 (internal quotations omitted)).

[361]. Id.

[362]. Id. at 19-20 (citing Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 835-36 (1995); Rust v. Sullivan, 500 U.S. 173, 200 (1991); Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).

[363]. Id. at 20 (emphasis added) (citing Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 548 (2001); NAACP v. Button, 371 U.S. 415, 429-30 & n.12 (1963); Grutter v. Bollinger, 539 U.S. 306, 332-33 (2003)). On FAIR’s citation in its brief of Grutter, see supra notes 226-228.

[364]. Id. at 20 (citing Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n.12 (1985)). For support of academic freedom’s bearing on the case, FAIR cited the briefs filed by its amici: the American Association of University Professors and Columbia University. See id.

[365]. Id.

[366]. Id. at 20-21 (citing Rust v. Sullivan, 500 U.S. 173, 200 (1991)).

[367]. Id. at 21 (emphasis added).

[368]. See FAIR, 126 S. Ct. at 1302.

[369]. Id. at 1307.

[370]. Id. at 1308. Expanding on this point, the Court stated that “‘it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.’” Id. (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)).

[371]. Id. (emphasis added) (citing W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); Wooley v. Maynard, 430 U.S. 705, 717 (1977)).

[372]. Id. at 1310.

[373]. See Brief for the Respondents at 28-30, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[374]. FAIR, 126 S. Ct. at 1311. The Court added that “[t]he fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O’Brien.” Id.

[375]. Id.

[376]. See Brief for the Respondents at 17, 30-35, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[377]. 530 U.S. 640 (2000).

[378]. See id. at 655-59. For FAIR’s argument relying on Dale, see Brief for the Respondents at 30-34, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[379]. Id. at 1312.

[380]. Id. at 1313.

[381]. Id.

[382]. 515 U.S. 557 (1995).

[383]. FAIR, 126 S. Ct. at 1313.

[384]. See Grutter v. Bollinger, 539 U.S. 306, 329 (2003).

[385]. Id.

[386]. Brief for the Respondents at 19, FAIR, 126 S. Ct. 1297 (No. 04-1152).

[387]. Id. at 20.

Comments are closed.