The U.S. Supreme Court last week upheld the law that allows the federal government to withhold funds from colleges that limit military recruiting, but sidestepped the question of whether the law interferes with academic freedom.
In a 21-page opinion written by Chief Justice John G. Roberts Jr., the court rejected arguments that colleges have a First Amendment right to exclude recruiters whose hiring practices conflict with their own antidiscrimination policies.
The court’s ruling was a victory for the Department of Defense, which had argued that recruiting restrictions hampered its ability to bring talented lawyers into the Judge Advocate General’s Corps, whose members act as prosecutors, defense attorneys, and legal advisers in the military.
The decision dealt a final blow to efforts by a coalition of law schools to strike down the Solomon Amendment, the twelve-year-old law that allows the government to penalize colleges that limit recruiting. Law schools have contended that the statute infringed on their constitutional freedoms of speech and association by forcing them to convey the military’s message and to assist an employer that discriminates against gay men and lesbians.
The founder of the coalition, Kent Greenfield, a law professor at Boston College, said the ruling was a setback. However, he added, “we’re confident that in the long run, we’ll win that larger civil-rights struggle” over the military’s “don’t ask, don’t tell” policy, which bars openly gay men and lesbians from serving.
But Daniel D. Polsby, dean of George Mason University’s School of Law, who wrote a brief supporting the government’s position, said the decision proved that “there was really no First Amendment case there to speak of.”
“This was essentially a self-indulgent exercise on the part of a law-school industry that has grown increasingly isolated and alienated from the mainstream of American law,” said Mr. Polsby.
Arguments About Freedom
Congress passed the Solomon Amendment, named for its sponsor, Gerald B.H. Solomon, then a Republican Congressman from New York, in 1994. For several years, many law schools complied with the law by providing minimal access to military recruiters.
But in late 2001, the military did an about-face, ordering law schools to provide the military with access “equal in quality and scope” to that given other employers. Congress codified that policy in 2004, while expanding the categories of financial support that could be denied to violators.
In its ruling last week, the court dismissed the First Amendment claims of opponents to the Solomon Amendment, but ignored the academic-freedom arguments raised in an amicus brief filed by the American Association of University Professors.
In that brief, the AAUP argued that Congress exceeded its authority when it used the amendment to prohibit conduct in areas outside the scope of a particular spending program. For example, under the Solomon Amendment, the government can withhold National Institutes of Health funds from the biology department, even if it is only the law school that is prohibiting military recruiters.
Kathleen M. Sullivan, a constitutional-law professor at Stanford University, who wrote the AAUP brief, said that Supreme Court’s omission leaves the academic-freedom argument “alive for potential use in future challenges” of spending conditions, including the Solomon Amendment.
The Supreme Court’s decision on the Solomon Amendment, Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-1152, overturned a 2004 ruling by the U.S. Court of Appeals for the Third Circuit, which found that the military had failed to show that its recruiting needs justified the intrusion on law schools’ constitutional rights.
In its ruling, the appeals court cited a 2000 decision by the U.S. Supreme Court, Boy Scouts of America v. Dale, that allowed the Boy Scouts to exclude a gay assistant scoutmaster.
Last winter the Defense Department appealed the 2004 ruling to the Supreme Court, which heard arguments in December. During those arguments, E. Joshua Rosenkranz, who argued for the law-school coalition, said the Solomon Amendment imposed unconstitutional conditions on federal funds by forcing law schools to choose between federal aid and their constitutional rights.
Paul D. Clement, the Justice Department’s solicitor general, replied that the amendment’s requirement that colleges provide access to recruiters was an ordinary contractual condition, no different from the strings routinely attached to gifts and bequests. He noted that law schools remained free to criticize the military’s policies and could even bar recruiters from their campuses if they were willing to forgo federal funds.
Speech or Conduct?
In its 8-0 ruling, the Supreme Court sided with the government, finding that Congress did not exceed constitutional limits on its power when it passed the law. Justice Samuel A. Alito Jr., who was seated as the court’s newest member only last month, did not take part.
“The Solomon Amendment neither limits what law schools may say nor requires them to say anything,” Justice Roberts wrote for the court. “Law 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.”
The justices noted that the court has given particular deference to lawmakers in cases involving Congress’s power “to raise and support armies.”
In overturning the appeals court’s decision, the justices said that the Solomon case was not like the Boy Scouts case because military recruiters are not members of law schools in the way that troop leaders are part of the Boy Scouts. Rather, the court said, recruiters are outsiders who come onto a campus for a limited purpose.
The law schools’ effort to cast themselves in the same light as the Boy Scouts “plainly overstates the expressive nature of their activity ... while exaggerating the reach of our First Amendment precedents,” Justice Roberts wrote.
Much of the ruling centered on the arcane question of whether law schools’ bans on military recruiting constitute speech or conduct. If they were speech, as the law-school coalition argued, then the Defense Department would have had to prove that the law served a “compelling government interest” and was “as narrowly tailored as possible” — a very high standard to meet.
But if, as the military maintained, the bans were “expressive conduct” — that is, conduct with elements of speech — then the Pentagon would have had to prove only that its recruiting would be less effective without the law.
Again, the court sided with the Defense Department, finding that law schools are not speaking when they play host to interviews and recruitment receptions.
The ruling’s unanimity was one of its most remarkable features, given that the free-speech and nondiscrimination arguments made by the law schools were considered likely to appeal to the court’s more-liberal members. Mark C. Rahdert, a constitutional scholar at Temple University, said he was not surprised that the court had deferred to the military. The Supreme Court has long taken a “more restrictive view of First Amendment rights when those rights collide with military needs,” he said.
He said he was stunned, however, that the court had found that Congress could have directly required universities to admit military recruiters, instead of making it a condition of receiving federal money. That position implies that Congress could pass a law requiring all universities — even those that forsake federal funds — to accommodate military recruiters.
Although the federal dollars at risk go to universities, law schools have been at the center of the controversy because their students are highly sought after for positions in the military. Law schools also tend to be more emphatic about extending their antidiscrimination policies to employers who recruit on their campuses. Still, a majority of law schools are now complying with the law, and only three law schools have had their federal funds cut off: New York Law School, Vermont Law School, and William Mitchell College of Law. All three are free-standing law schools and receive little or no federal money.
Right to Protest
Dozens of groups filed briefs in the case. Among them was a group of Harvard University professors, which contended that the Defense Department had misinterpreted the law to require preferential treatment for recruiters. Their statutory argument held that the law had been written to apply “only to policies that single out military recruiters for special disfavored treatment, not evenhanded policies that incidentally affect the military.”
The Supreme Court rejected that argument, finding that the law had been written to ensure military recruiters the same access as employers who comply with a law school’s nondiscrimination policy.
The case has also attracted the attention of Congress. Some lawmakers had worried that if the Solomon Amendment had been struck down, Congress could lose its ability to attach conditions to federal funds.
One of the amendment’s original sponsors, Rep. Richard Pombo, a Republican from California, applauded the Supreme Court’s decision. “Universities that denied recruiters on their campus were not only limiting opportunities for their own students, but in doing so did a disservice to our military men and women,” he said in a statement. “They played politics and lost.”
But Mr. Greenfield, of the law-school coalition, said the ruling does have one element that appeals to him: It reaffirmed the rights of law schools to disavow, and even denounce, military recruiting. In the past, the military has complained about protests on law school campuses, he said.
“The opinion doesn’t take our First Amendment arguments honestly, but it does protect our ability to protest going forward,” he said. “We may see more protests against military recruiters than we ever have before.”
The Solomon Amendment
From Congress to the Supreme Court
May 1994: The U.S. House of Representatives approves a measure sponsored by Rep. Gerald B.H. Solomon (right), a New York Republican, that prevents the Pentagon from awarding grants or contracts to universities that bar military recruiters from their campuses. The measure comes several months after a New York State Supreme Court justice, in order to comply with state law and an executive order by the governor, ordered public universities to bar visits by military recruiters because of the Pentagon’s policy excluding openly gay men and women from the military. June 1996: The House approves an amendment introduced by Representative Solomon that prohibits any funds in an appropriations bill for the Department of Veterans Affairs from going to colleges that bar Reserve Officer Training Corps programs from their campuses. January 1999: Three student groups at Vermont Law School sue the federal government, saying the law subjects them to discrimination. The case is later dismissed on a technicality. September 2003: Wanting to ban military recruiters from their campuses, a coalition of law schools, professors, and students sues the Department of Defense. October 2004: Congress passes a provision specifying that colleges that bar military recruiters from their campuses cannot receive defense-related funds from the Central Intelligence Agency, the Departments of Homeland Security and of Transportation, and the Department of Energy’s National Nuclear Security Administration. The measure requires colleges to grant military recruiters access that is “equal in quality and scope” to that given to other potential employers. November 2004: The U.S. Court of Appeals for the Third Circuit, in Philadelphia, rules in a 2-1 decision that colleges have a First Amendment right to exclude recruiters whose hiring policies discriminate against gay men and lesbians. Within days, Harvard Law School becomes the first institution to once again ban the military’s visits. May 2005: The U.S. Supreme Court announces that it will review the lower court’s ruling on the Solomon Amendment. June 2005: The House adopts an amendment that requires the secretary of defense to submit a report listing the colleges that are not providing equal access to military recruiters and Reserve Officer Training Corps programs. September 2005: Facing pressure from the Defense Department, Harvard Law School agrees to allow the military to use its office of career services to recruit students for the Judge Advocate General’s Corps. March 2006: The Supreme Court rules unanimously that the federal government can withhold federal funds from colleges that bar or restrict military recruiting on their campuses. |
http://chronicle.com Section: Government & Politics Volume 52, Issue 28, Page A30