The easy way out for the Supreme Court on "don't ask, don't tell."

On Tuesday, the Supreme Court will hear arguments in FAIR v. Rumsfeld, a suit brought by a group of law schools that think it's unconstitutional for the government to take away their federal research funds because they won't let the military participate in their on-campus programs for employers who recruit students. The law schools say they are enforcing their equal-opportunity policies against the military because its "don't ask, don't tell policy" discriminates against gays and lesbians. The Bush administration says the universities have no business taking government money if they won't give military recruiters the full access they give other would-be employers. Not surprisingly, the case has attracted widespread attention as a test of universities' First Amendment rights and of the government's power to place conditions on federal funding.

But FAIR v. Rumsfeld will also test whether the Supreme Court will embrace the stated opposition to judicial activism of its new chief justice, John Roberts. The strange thing about the FAIR case is that the federal law at issue, known as the Solomon Amendment, doesn't say what either the law schools or the government say it says. In fact, the statute does not actually raise the constitutional questions the parties have asked the court to answer. Any court opposed to activism should stay away from those hard questions.

As Richard Thompson Ford has noted in Slate, the military's discriminatory policies raise important constitutional issues about universities, free speech, and discrimination. On the one hand, the government may not put unconstitutional conditions on the receipt of governmental benefits. The Supreme Court's 2000 decision in Boy Scouts of America v. Dale seems to support FAIR's view that the Solomon Amendment creates such an unconstitutional condition. In Dale, the court held that private organizations have the right not to associate with gays. FAIR argues that universities ought to have the same right not to associate with those who discriminate against gays. On the other hand, there is also a well-settled constitutional tradition of granting Congress considerable leeway to set the terms under which federally funded institutions may operate.

That's the tension in FAIR, as the parties have framed the case. But the best reading of the Solomon Amendment makes the tough constitutional questions go away. As currently drafted, the amendment bars federal funding to universities that prevent military recruiters from gaining access to campuses and students "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." The key question, then, is the meaning of "equal in quality and scope." To answer, you have to decide what needs to be equal.

http://www.slate.com/id/2131465/