03/06/2006
Supreme Court Rules on Solomon Amendment
In a unanimous decision, the U.S. Supreme Court today ruled that colleges accepting federal money must allow military recruiters on campus, despite any objections to the military's "Don't Ask, Don't Tell" policy.
Chief Justice John Roberts wrote the decision:
Because Congress could require law schools to provide equal access to military recruiters without violating the schools' freedoms of speech or association, the Court of Appeals erred in holding that the Solomon Amendment likely violates the First Amendment. We therefore reverse the judgment of the Third Circuit and remand the case for further proceedings consistent with this opinion.
Added Roberts: "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."
Justice Samuel Alito did not participate as he had not yet joined the Court when the case was argued.
The Solomon Amendment was passed in 1994 after universities banned military recruiters because the military's "Don't Ask, Don't Tell" policy violated the school's non-discrimination policies.
Supreme Court Upholds Campus Military Recruiting [nyt]
Supreme Court upholds law school access for military recruiters [jurist]
Posted 11:54 AM EST by Andy Towle in Current Affairs | Permalink
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The Solomon Amendment is an odious piece of legislation, and it would have been nice to see it go down, but it was always a long shot. One key thing to notice about today's opinion, however, is that it explicitly rests on the premise (as conceded by the US at oral argument) that although schools must give access to military recruiters on the same footing as nonmilitary recruiters (which usually means just giving them interview rooms and sign-up sheets), the schools are free to express their disapproval of the military, including putting up signs next to the interview rooms and even helping to organize student protests. So that's what will happen from now on -- you'll hopefully see lots of student protests of military recruiters that will make it uncomfortable for most students to even sign up for slots. And I know LGBT groups at many schools have organized to sign up for all the interview slots. So, this battle isn't over yet.
Posted by: Glenn | Mar 6, 2006 1:05:45 PM
I want to start a fight. I'm a liberal, but I agree with the SCOTUS decision. If you take their money ("they" being whomever), you play by their rules.
Posted by: JT | Mar 6, 2006 1:39:56 PM
Funny how academics always want to take a stand until their gravy train is threatened.
Posted by: Mitch Cardwell | Mar 6, 2006 1:45:00 PM
JT, I won't start a fight, but I submit that if you think about the position you just stated for a few minutes, you'll realize how wrong it is. Think of the vast spending power of the federal government and the number of people who receive federal funds -- corporations, Social Security recipients, Medicare/Medicaid recipients, the list is plainly huge. In fact, I'd bet there are precious few of us in this country who don't receive, directly or indirectly, federal funds.
Are you really saying that the federal government should be able to attach ANY conditions it likes to the receipt of those funds, on the premise that if you don't like it, you don't have to take the money? How about, for example, public schools (which receive a substantial amount of federal funding) having to instruct their students that homosexuality is wrong? (We've come damn close to this in the past, too.) Or hell, by your lights, even crazier shit would be OK. Social Security recipients have to attend Republican campaign rallies! Welfare recipients have to go to church! Etc., etc. I'm sure you don't mean this.
In any case, it is well-establlshed by the Supreme Court, and reiterated in this case, that your view is not the law. To quote from the Chief Justice's opinion today: "We recently held that the government may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit." This is known as the "unconstitutional conditions doctrine," and it remains good law. The basis for today's decision was not that "if you take gov't money you must accept the strings," it was that what was asked of the schools -- i.e., that they provide rooms, etc., to military recruiters -- did not immplicate the schools' first amendment rights in the first place.
Posted by: Glenn | Mar 6, 2006 2:06:15 PM
I agree; the decision was right on the money (so to speak). Nothing impedes the rights of students or faculty to speak out against any presence on campus (and one only needs to look around to see that it happens very frequently all over the country). If they don't, we should fault apathy rather than coercion.
The Court's decision reaffirmed First Amendment speech protections and, as the Chief Justice clearly wrote, the Act does not and cannot limit or compel any expression the school would otherwise permit.
Posted by: Dave | Mar 6, 2006 2:07:46 PM
Glenn: No, I'm not "...really saying that the federal government should be able to attach ANY conditions..." The intent of my post was simply to drive home the fact that the Federal government does attach strings to its money. For instance: the Department of Education give money to schools, but then they have to abide by NCLB. Money that is given to countries for AIDS prevention must be used, in large measure, for stressing abstinence over condom use.
I don’t thing the government should have carte blanche to put restrictions on activities not associated with the purpose of the money being given. It happens, though, and is the accepted practice. I think the Court was right ruling as it did because, until the government changes, that’s the way things work. Ideally, we would have a government that really believes (as the incumbent in the Executive maintains) that it’s our money, not the governments.
Also, note that Chief Justice Roberts said exactly what you contend is the wrong notion, namely, there’s nothing forcing law schools to take federal money and that if the schools don’t want recruiters on campus, they don’t need to take the cash.
Posted by: JT | Mar 6, 2006 2:34:13 PM
OK, JT...your second post says nothing remotely like your first, but I'll take your representation that you only meant your statement as a description of how things are, rather than how they should be. (Hard to imagine, however, how you thought you'd "start a fight" by merely stating the fact that the gov't sometimes attaches conditions to its money.) That the government had in fact attached conditions to its money was not in serious dispute, however -- it was whether those conditions were constitutional.
As for your assertion of what Roberts says: I guess taking your statement literally, you're right: he does say that the schools could avoid the conditions by refusing the funds. But again, so what? That this is how the law operates was not in dispute. The important point is, nowhere does Roberts say that the Solomon Amendment is acceptable simply because of the schools' ability to refuse the money. Nowhere.
Posted by: Glenn | Mar 6, 2006 2:54:41 PM
Isn't exposure to variety of viewpoints one goal of an educational institution? No student was ever forced to attend a recruiting session under Solomon.
Posted by: B. Cline | Mar 6, 2006 3:23:18 PM
This was a unanimous decision, people. that means that EVERY SC Justice on the bench, of every political leaning, agreed with Roberts. Because he's right. When are we going to start picking the RIGHT battles to fight? Much of our lobbying clout and money is absolutely wasted on bullshit like this. The only thing holding gay rights back at this point is ourselves, unfortunately.
Posted by: Aatom | Mar 6, 2006 3:57:19 PM
And this was the kind of fight I was hoping to start. Please tell me how, Glenn, my two posts were in opposition to each other? The firsts states an opinion of agreement followed by an assertion. The second simply supported the assertion.
Posted by: JT | Mar 6, 2006 4:18:37 PM
Woo, dogs, that's the most incoherent mess of crap I've ever read...and I wrote it. Clearly I'm still grieving over the loss of BBM. Glenn, never mind, I guess I can’t put my muddled mind to work. Incidentally, are you an attorney? If so, do you work with civil rights stuff?
Posted by: JT | Mar 6, 2006 5:10:56 PM
Actually Roberts isn't right. In trying to distinguish this case from Dale, he states that it is a critical distinction that the military recruiters do not become a part of the university community. This is hogwash. Apply this to Dale and that means that New Jersey can't force the Scouts to allow gay scoutmasters, but they can force the Scouts to allow homosexual "recruiters" at their meetings in exchange for public accomodations. Does anyone think for one iota of an nanosecond that the Supreme Court would have upheld the New Jersey law in that senario?
I do think the law schools took the wrong approach to this case however. I think it would be better to challenge the amendment on the breadth of the denial of funds. Congress can ofcourse attach conditions on receipt of federal funds. In the 80's, South Dakota challenged a law that conditioned receipt of federal highway funds on raise the drinking age for alcohol to 21. Failure to comply resulted in a loss of 5% of a state's highway funding. The Court found that law constitutional, but noted that "in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion" and that in such a case the condition is unconstitutional. The highway law only took away 5% pof the federal highway funds and only the highway funds. Solomon takes away 100% of funding and not just to the law school, but the entire university itself. For example, suppose Big State University has a undergrad, grad, law, medical and business schools and a medical research center. BSU decides to disallow military recruiters at its law schools. Not only does BSU's law school lose ALL of its federal funding, but so does the undergrad school, grad school, medical school, business school and the medical research center. Oh, and the denial of funds also applies to students getting federally funded scholarships, grants and loans too. Harvard University estimated that if Solomon was applied to them, they's lose over $300 million in funding.
Posted by: Craig | Mar 6, 2006 6:04:54 PM
We'll give you money to allegedly advance education but you have to do as we say as a result. No different than Pepsi giving money to high schools to pay for upgraded football equipment in exchange for installing Pepsi machines and banner ads on the news scoreboard they bought with the money.
Note: the government does not give you money for purely altruistic reasons. Too bad the government doesn't make that clear up front when they give the money. That seems to be the true dubious act here.
Posted by: Chad Hanging | Mar 6, 2006 8:38:46 PM
It's interesting that the government takes what it wants regardless of what you think about its message, though, isn't it?
Posted by: God of Biscuits | Mar 7, 2006 4:37:56 AM
two things:
1) what's missing from the above analyses is an understanding of how far-reaching the law is. it's not just the law schools that lose funding for denying access to military recruiters (which, you all should know, both sides have stipulated to as "discriminatory"). it's the entire university. so, physics students lose particle accelerator funding because the JAG corps can't recruit. and it's not just allowing the military to come on campus that's at issue--the military requires access to every other resource that any other employer is given. it's "most-favored-recruiter" status, and that's unprecedented. both of these are (or, were) constitutionally suspect issues.
2) I was at the oral argument on 12/6 of last year and I can tell you that though the chances of a victory seemed slim, I was shocked by today's decision. I thought we would at least have a strong dissent from Breyer or the like. I wonder if, given the recent series of them, the current chief justice is not discouraging the issuance of dissenting opinions...?
Posted by: nwt | Mar 7, 2006 8:55:59 AM
I think that this decision would have been problematic either way. Did we really want to win a case that would have helped to enshrine Boyscouts v. Dale as a strong constitutional doctrine? On the flip side, this certainly does take a serious amount of autonomy from those receiving federal funds - but consider that the conditions placed on those funds must always be constitutional.
I think my particular problem with this decision was the limit on the definition of "speech" that was used to define what was being compelled by the legislation. By exempting "conduct" from "speech" I think that the Justices really missed the boat. I guess they don't know, as I do, what it is like to see the administrators having lunch with an employer who will actively discriminate against you...
Posted by: Patrick | Mar 7, 2006 1:44:19 PM
Shouldn't we be working harder to actually overturn this ridiculous policy rather than taking meaningless prissy stands like this on our college campuses? In the battle to win the hearts and minds of the American public, this type of anti-American posturing (even if it isn't, it sure looks like it is to most people) makes us less sympathetic which will make it harder to do the necessary work of convincing our representatives that this costly, unfair, and anti-military (taking key personnel out of commission) form of discrimination should be abolished.
Posted by: Aatom | Mar 7, 2006 5:09:02 PM