Federal coercion of law schools in military recruiter access upheld unanimously
The Supreme Court has unanimously rejected a constitutional challenge to the Solomon Amendment, a provision of federal law that bars financial assistance to universities that exclude military recruiters from their facilities.
Ruling on March 6 in a challenge brought by an organization of law schools that wanted to bar military recruiters because of the ban on military service by openly gay people enacted into law during the Clinton administration, the Court reversed a decision by the U.S. Court of Appeals for the 3rd Circuit in Philadelphia which had declared Solomon unconstitutional.
The Solomon Amendment, named for its original sponsor in the House of Representatives, the late Gerald Solomon, a New York Republican, was enacted in response to a successful effort during the 1980s by law students at the State University of New York at Buffalo to keep military recruiters off campus. The students sued their school, seeking enforcement of an Executive Order issued by former Democratic Governor Mario Cuomo that banned sexual orientation discrimination in New York State facilities.
When the students won their lawsuit, Solomon responded by placing an amendment on a pending Defense Department appropriations bill, providing that no money appropriated under the bill could go to educational institutions that barred military recruiters.
The Department of Defense at that time was not looking for recruiting help from Solomon, however, and interpreted the amendment only narrowly, so that it would not affect very many law schools. In effect, DOD took the position that only the individual school or unit of a university that barred military recruiters would lose federal funds. Since law schools generally do not receive defense funds, few felt pressured to allow military recruiters on campus.
However, Congress revised the amendment over the years by extending it to a broader range of appropriations, separate from defense, and by the late 1990s had effectively ended the ban on military recruiting at law schools by threatening student loan and aid funds. At that point, Representative Barney Frank, the gay Massachusetts Democrat, responding to pleas from law professors and LGBT student groups, was able to get the measure amended so that it would not apply to any money intended for student financial assistance. As a result, many schools reinstated their bans.
However, the Bush administration decided after September 11, 2001 to crack down on non-compliant schools. It got the Defense Department to change its interpretation of the amendment so that it could be used effectively to coerce any law school affiliated with a university receiving federal money by ending the policy of only barring specific units of schools from getting government funds rather than the entire institution.
This led to the formation of the Forum for Academic and Institutional Rights, Inc. (FAIR), an organization of law schools, professors, and students dedicated to getting the Solomon Amendment declared unconstitutional.
FAIR argued that the Solomon Amendment violated the First Amendment free speech and association rights of law schools and their faculties in several ways––both by compelling them to associate with and lend institutional support to military recruiters and by impairing their ability to communicate their non-discrimination policies by introducing discriminatory speech on campus.
In rejecting these arguments, Chief Justice John Roberts, Jr., writing for all eight voting members of the Court, wrote, “FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect. The law schools object to having to treat military recruiters like other recruiters, but that regulation of conduct does not violate the First Amendment.”
At the heart of Roberts’ analysis was the conclusion that military recruiting is conduct, and only incidentally expressive activity. Thus, requiring law schools to allow military recruiting on their campuses is not a form of compelled speech. Indeed, Roberts argued that under Congress’ constitutional power to raise armies to provide for the common defense, the federal government “could require law schools to provide equal access to military recruiters without violating the schools’ freedoms of speech or association,” even without resorting to the threat of withholding funds.
He emphasized that neither the Solomon Amendment nor the Court’s decision would prevent schools from articulating their opposition to the Don’t Ask, Don’t Tell military policy. “Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated policy, all the while retaining eligibility for federal funds,” Roberts said, citing an argument made by the Bush administration during oral argument. “As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do––afford equal access to military recruiters—not what they may or may not say.”
Roberts was skeptical of the argument that students might be confused by the presence of military recruiters into thinking that their schools approved of the military’s discriminatory anti-gay policies.
“Nothing 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,” he wrote. “We have 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. Surely students have not lost that ability by the time they get to law school.”
The Court also rejected an argument made by a separate group of law professors that the Solomon Amendment could be narrowly interpreted to require only that the schools impose the same requirements on military recruiters as those imposed on other employers, so that as so long as they barred all anti-gay recruiters, not just military recruiters, the military could not complain. But Roberts pointed out that the “equal treatment” requirement recently added to the Solomon Amendment was intended to answer concerns from the trial judge in this case about whether having recruiters meet with students off-campus would satisfy the law. The professors’ argument that an equally applied ban on all anti-gay recruiters, he wrote, “is rather clearly not what Congress had in mind in codifying the DOD policy. We refuse to interpret the Solomon Amendment in a way that negates its recent revision, and indeed would render it a largely meaningless exercise.”
This decision means that the military should find easy access now for recruiting at any educational institution that receives money from the government other than student aid funds, which are still not covered by Solomon. Congress could change that if schools whose only reliance on federal funds is for student financial assistance—such as independent law schools unaffiliated with a larger university—continue to bar military recruiters. For most law schools attached to a broader university, however, compliance is essentially mandatory, since Solomon creates an official blacklist that bars funds from nearly every federal agency with which major research universities contract.
Currently, the only schools officially on the blacklist are Vermont Law School, William Mitchell College of Law in St. Paul, and New York Law School, at which this writer is a professor. At all three schools, student financial aid represents the only significant source of federal funding.