The statement at issue:
“Ironically, Constitution Day is probably unconstitutional. One liberty the Constitution protects is the right of individuals and institutions not to applaud it. The laudable message that Congress wanted to send – our Constitution should be celebrated – is muddled by its method of mandatory commemoration. The mandate violates the academic freedom of the targeted institutions…The issue turns on the ‘unconstitutional conditions’ doctrine, an often puzzling area of Supreme Court jurisprudence.”
-- Boston College law professor Kent Greenfield, "Happy Illegal Holiday!”, op-ed column in The New York Times, September 17.
We checked the Constitution, and…
Prof. Greenfield is correct that the constitutional doctrine he cited is “often puzzling.” In fact, a California law professor, Daniel A. Farber, wrote five years ago that the doctrine is a “quagmire,” having “long been considered an intellectual and doctrinal swamp.” Farber suggested that it is clear that most, if not all, constitutional rights can be waived, at least if the benefit received for doing so does not actually coerce a surrender of a definite right.
The present era observance of Constitution Day dates from 2004, when the late West Virginia Sen. Robert C. Byrd succeeded in attaching an amendment to a spending bill. It specified that every educational institution that received federal money “shall hold an educational program on the United States Constitution on September 17 of each year for the students served by the educational institution.” The Byrd amendment changed what had been Citizenship Day into Constitution Day and Citizenship Day, the latter being observed since 1952 to honor those newly naturalized as U.S. citizens.
Almost from the beginning of the Byrd Amendment, there have been debates – primarily within the academic community – about whether tying access to federal funds to such a commemoration did, in fact, run counter to constitutional rights, such as free speech or academic freedom. The Supreme Court, while it has never ruled directly on this particular linkage of funding to a congressional condition, has had a series of rulings dealing with the doctrine on which Prof. Greenfield relied, but the results tend to fall all across a wide spectrum of allowing or disallowing the linkage.
There is one Supreme Court decision, however, that does deal directly with a funding condition imposed on educational institutions. In 2006, the Court upheld the constitutionality of the so-called Solomon Amendment allowing the Pentagon to cut off federal funds to any college that did not give military recruiters equal access to students.
A number of law schools, including Harvard, under then Dean Elena Kagan (now a Supreme Court Justice), objected to the condition, because the military was then enforcing in full the “don’t ask, don’t tell” ban on gays serving openly in the military. (Kagan’s role raised a minor issue during her Senate confirmation.)
That case was titled Rumsfeld (Defense Secretary) v. FAIR. The organization challenging the law was the Forum for Academic and Institutional Rights, led at the time by Professor Greenfield. In the unanimous ruling, the Court said that the mere presence of a recruiter on a law school campus did not infringe on anyone’s constitutional rights.
Of interest, perhaps, is that another law professor, Nelson Lund of George Mason University in Virginia, was involved on the other side of the FAIR case, defending the Solomon Amendment. In a speech at George Mason in 2006, in commemoration of Constitution Day, Professor Lund suggested that the 2004 law was probably constitutional, since it did not dictate any message and had no enforcement mechanism – including no threat of a cutoff of funds.
The academic debate over what constitutes an “unconstitutional condition” very likely will continue, and Constitution Day perhaps could serve as a debating topic to mark the day.Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.