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The Chronicle: U.S. Supreme Court Upholds Law Requiring Colleges to Provide Equal Access to Military Recruiters

The U.S. Supreme Court ruled unanimously this morning that the federal government can withhold federal funds from colleges that bar or restrict military recruiting on their campuses.

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 hamper its ability to bring talented lawyers into the Judge Advocate General’s Corps, which handles legal affairs for the military.

The decision dealt a final blow to efforts by a coalition of law schools to strike down the Solomon amendment, a decade-old law that allows the government to deny federal funds to colleges that limit recruiting. Law schools have contended that the statute infringes on their constitutional freedoms of speech and association by forcing them to convey the military’s message and to assist an employer who discriminates against gay men and lesbians in hiring.

The founder of the coalition, Kent Greenfield, a law professor at Boston College, said he was disappointed at the ruling. However, he added, “we’re encouraged by the fact that this is just a skirmish in a larger civil-rights battle over the rights of all our students to serve our country.”

“While this may be a setback,” he said, “we’re confident that in the long run, we’ll win that larger civil-rights struggle” over the Pentagon’s “don’t ask, don’t tell” policy covering its treatment of gay and lesbian members of the armed forces.

The Supreme Court’s decision in the case, 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 (The Chronicle, December 10, 2004). 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.

The Defense Department appealed the case to the Supreme Court last winter, and the court heard arguments in December. During those arguments, E. Joshua Rosenkranz, a lawyer for the law-school coalition, said the Solomon amendment imposed unconstitutional conditions on the receipt of federal funds by forcing law schools to choose between federal aid and their constitutional rights (The Chronicle, December 16, 2005).

Paul D. Clement, the Justice Department’s solicitor general, replied that the amendment’s “equal access” requirement was an ordinary contractual condition, no different than 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.

In its ruling, the Supreme Court sided with the government, finding that Congress did not exceed constitutional limits on its power when it enacted the legislation.

“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 voted to uphold the law by an 8-to-0 vote. Justice Samuel A. Alito Jr., who was seated as the court’s newest member only last month, did not take part in the ruling.

Dozens of groups filed briefs in the case, including the American Association of University Professors, which argued that the law interferes with academic self-governance.

Another brief, submitted by a group of Harvard University professors, contended that the Defense Department had misinterpreted the law to require preferential treatment for recruiters. The department’s “statutory argument,” the professors said, 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 attracted the attention of Congress, which passed the Solomon amendment in 1994 — its chief sponsor was the late Rep. Gerald B.H. Solomon of New York — and has expanded its reach several times since then.

Some lawmakers had worried that if the Solomon amendment had been struck down, Congress could lose its ability to attach conditions to federal funds — the sacred “power of the purse.” One of the amendment’s original sponsors, Rep. Richard Pombo, a Republican from California, filed a brief supporting the Pentagon’s position through the Mountain States Legal Foundation.

The ruling’s unanimity was one of its most remarkable feature, 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. Perhaps in part, the outcome reflects the court’s general deference to the military’s views of its needs, especially during a time of war.