Today, the United States Supreme Court upheld the "Solomon Amendment" against a challenge from a group of law schools claiming that the "forced inclusion and equal treatment of military recruiters violated the law schools’ First Amendment freedoms of speech and association." Rumsfeld v. FAIR, 547 U.S. ____ (March 6, 2006), online version at 3.
Indeed, according to FAIR (Forum for Academic and Institutional Rights- the association of law school faculties who was the plaintiff in this case), "the Solomon Amendment was unconstitutional because it forced law schools to choose between exercising their First Amendment right to decide whether to disseminate or accommodate a military recruiter’s message, and ensuring the availability of federal funding for their universities." Id.
So, what is the Solomon amendment, and why does it matter?
The Solomon Amendment
Under the current "don’t ask, don’t tell" policy of the United States’ Military, "a person generally may not serve in the Armed Forces if he has engaged in homosexual acts, stated that he is a homosexual, or married a person of the same sex." 10 U.S.C. 654. In response to this "discriminatory" policy, several law schools began limiting access of military recruiters to their students in the same manner as they would limit access to any law firm or group discriminating on the basis of race, religion, gender, or sexual orientation.
Congress responded by enacting the so-called Solomon Amendment, 10 U.S.C.A. 983 (Supp. 2005), which specifies that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose federal funding. FAIR had then argued that the Solomon Amendment impermissibly infringed on the First Amendment right to association, reasoning unanimously rejected by the Supreme Court today.
The Supreme Court Opinion
The nub of the opinion holds that because the Solomon Amendment primarily regulates conduct (allowing or not allowing military recruiters access to university students) rather than actual speech, the governmental interest in "provid[ing] for the common defense," "rais[ing] and support[ing] Armies," and "provid[ing] and maintain[ing] a Navy," U.S. Const. Art. 1, cls. 1, 12-13, heavily outweighs any incidental incursions on First Amendment freedoms.
The Court relied upon its analysis in United States v. O’Brien, 391 U.S. 367 (1968) to reach this conclusion. In that case, a law prohibiting the burning of draft cards was held not to impermissibly impede First Amendment rights because the statute at issue prohibited conduct rather than speech. In other words, "when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations of First Amendment freedoms." O’Brien, 391 U.S. at 376. Congress’ power to raise armies, etc., in providing for the common defense is "broad and sweeping." Id. at 377. Indeed, "judicial deference [towards acts of Congress] is at its apogee" when Congress legislates under its authority to raise and support armies. Rostker v. Goldberg, 453 U.S. 57, 70 (1981).
In fact, the Court notes that Congress has even acted more deferentially towards free speech than constitutionally required by acting indirectly through the Constitution’s spending clause, rather than directly mandating access for military recruiters at universities. The university is still left with a viable choice- either allow the military recruiters access to the students or make a political statement at the price of some (but not all!) federal funding. In any case, "[t]he Solomon Amendment neither limits what law schools may say nor requires them to say anything." Rumsfeld v. FAIR, 547 U.S. ____, online version at 10. Indeed, "[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." Id.
The Court also found that the Solomon Amendment does not violate the "right of expressive association" as highlighted in cases such as Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000). In Dale, the Court held that the Boy Scouts’ "freedom of expression" was violated by New Jersey’s public accommodations law, which required the organization to accept a homosexual as a scoutmaster. The Court in Rumsfeld distinguishes Dale by noting that, "unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school ‘to accept members it does not desire.’" Rumsfeld, online version at 19 (quoting Dale, 530 U.S. at 648). Indeed, "[r]ecruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students– not to become members of the school’s expressive association." Rumsfeld, online version at 19. Therefore, because there is no forced association by the Solomon Amendment, it does not violate the "right of expressive association" which has been found to reside in the First Amendment.
Why it Matters
Despite any arguments of restrictions caused by the Solomon Amendment on expressive activity, there certainly is no dearth of expression from either the law schools or their students on the issue of our "discriminatory" Armed Forces! When I was a law student at the University of Michigan Law School, each and every time the military came to interview for JAG on campus, the career services office sent out an e-mail with this SCREAMING CAPS WARNING AND DISCLOSURE ATTACHED AT THE FOOT:
ALTHOUGH THE EMPLOYMENT POLICIES AND PRACTICES OF THE UNITED STATES ARMED FORCES DO NOT MEET THE LAW SCHOOL’S REQUIREMENT THAT EMPLOYERS WHO INTERVIEW HERE DO NOT DISCRIMINATE ON THE BASIS OF SEXUAL ORIENTATION, CURRENT FEDERAL LAW EFFECTIVELY PREVENTS THE LAW SCHOOL FROM APPLYING THIS REQUIREMENT TO MILITARY RECRUITERS, INCLUDING THOSE FOR THE JUDGE ADVOCATE GENERAL CORPS. THE FACT THAT MILITARY RECRUITERS ARE HERE IN NO WAY REFLECTS THE LAW SCHOOL’S ENDORSEMENT OF THEIR DISCRIMINATORY EMPLOYMENT PRACTICES.
(whew, that’s one mouthful of a footer!). To see an example of this statement online, see Memo of the Dean of the University of Michigan Law School on Non-Discrimination Policy.
Then, when the military is actually interviewing law students at Michigan, anyone who dares interview with this "discriminatory" organization must face a gauntlet of picketing, jeering, swearing, and generally more "enlightened" peers. (previously blogged on, in passing, here)
And the Michigan Law School itself puts up as many hurdles as possible to students finding jobs in our discriminatory Armed forces. Basically, the law school will do the absolute minimum that it must do in order to comply with the Solomon Amendment mandate to allow military recruiters access to law students. In a controversial decision during my tenure as a law student there, one which may have actually violated the statute, the dean of students decided to cancel a "brown bag lunch" where the speaker was to be a recruiter for the Airforce JAG (where the students would bring their own lunches and listen to a recruiter discuss his own career in the military). His grounds for cancelling the speech were that the Solomon Amendment required the law school to allow military recruiters access to the law students for interviews, not for speeches about careers there. Therefore, the law school refused to do any more than what it perceived as the bare minimum to comply with the statute.
In so doing, the law school caved to pressure from student political groups and effectively prevented several interested law students from hearing about a respected and viable career choice with the U.S. Military. How unfortunate for those students who paid over $32,000 in tuition per year, with the hopes that attending a "top ten" law school would bolster their chances to get into the U.S. Military JAG Corps. I had several friends in this category.
To me, this example illustrates why the Solomon Amendment is necessary. I have no doubt that sans Solomon Amendment the University of Michigan Law School, and others like it, would refuse access to military recruiters- effectively barring from their ranks any intelligent young students whose ambitions might include a career in the United States Armed Forces. Remember, we are not talking about a bunch of racist coneheads who want to go off and be in-house counsel for the Klan or anything like that- these are people who want to serve their country in a special way.
At any rate, I am glad that the Supreme Court overturned the Third Circuit’s opinion and upheld the Solomon Amendment as constitutional. Our Military will still be able to recruit some of the best and brightest law students for its JAG ranks, assuming of course that anyone has the courage to walk the gauntlet of picketing, jeering peers exercising their First Amendment rights with no restrictions from the statute mandating military access to Universities.