Congress is within its authority to require colleges to open their job fairs to military recruiters, even if campus nondiscrimination policies clash with federal law restricting gays in the military, the U.S. Supreme Court ruled last week.
The 8-0 decision upholds the Solomon Amendment, a measure Congress passed in 1994 and expanded several times that calls for withholding federal money from colleges and universities that do not give the U.S. military the same access to students they provide to other potential employers.
The case was being watched closely by groups opposed to military recruiting in high schools, because of a provision of the No Child Left Behind Act that guarantees military recruiters access to schools. Schools could lose their federal Title I aid if they fail to comply.
“A legal challenge to that particular law is probably much less likely now,” said Rick Jahnkow, an organizer for the Project on Youth and Non-Military Opportunities, based in Encinitas, Calif. His group brings ex-service personnel to high schools in the San Diego area to talk to students about military life and nonmilitary options for preparing for careers, paying for college, and serving their communities.
An association of 38 law schools challenged the Solomon Amendment in 2003, arguing in a lawsuit that it violated their First Amendment rights of free speech and association. The Forum for Academic and Institutional Rights, or FAIR, argued that admitting military recruiters interfered with their message that employers should not discriminate based on sexual orientation.
But the high court rejected the law schools’ arguments last week.
“In this case, accommodating the military’s message does not affect the law school’s speech, because the schools are not speaking when they host interviews and recruiting receptions,” Chief Justice John G. Roberts wrote in the opinion for the court in Rumsfeld v. FAIR (Case No. 04-1152). Such activities are not “inherently expressive,” he said.
He said the law schools’ situation was unlike examples of compelled speech that the court has ruled unconstitutional, such as a state requirement that schoolchildren recite the Pledge of Allegiance and salute the flag struck down in 1943 in West Virginia State Board of Education v. Barnette.
In other cases, the court ruled unconstitutional a New Hampshire law that required its motorists to display the state motto, “Live Free or Die,” on their license plates, and a Massachusetts law that required the St. Patrick’s Day parade in Boston to admit a gay Irish group whose message the parade’s organizers did not wish to endorse.
The presence of military recruiters and the assistance that colleges may be required to give them, such as sending e-mails or posting notices on bulletin board, are a “far cry” from those examples of compelled speech, Chief Justice Roberts wrote.
Law school students are unlikely to be confused about the schools’ position on federal policies regarding gay service personnel—summarized as “don’t ask, don’t tell”—especially since universities are not restricted from speaking out about those rules, he wrote.
The Supreme Court has “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,” the chief justice wrote. “Surely students have not lost that ability by the time they get to law school.”
Raising a Military
Bruce Hunter, the associate executive director for public policy of the American Association of School Administrators, said his group opposed the No Child Left Behind law’s military-recruiting requirements because it was at odds with local control of schools.
But he added that, as long as Congress spells out clearly the conditions for receiving federal aid, the government is well within its rights to impose them.
Beyond the arguments over free speech and Congress’ spending powers, some legal analysts thought it significant that the ruling also invoked the constitutional power of Congress to raise a military force.
“Military recruiting promotes the substantial government interest in raising and supporting the armed forces—an objective that would be achieved less effectively if the military were forced to recruit on less favorable terms than other employers,” Chief Justice Roberts wrote.
Mr. Jahnkow, of the group opposed to military recruiting in schools, said: “The Supreme Court decision has some really serious implications, partly because the opinion sets out the principle that the federal government has a right to impose recruiters on any school even if there’s no funding involved that could be withdrawn or withheld as a punishment.”
