March 06, 2006

A sensible decision

The US Supreme Court unanimously agreed that the Solomon Amendment -- which withholds federal monies from universities which prohibit military recruiters on campus -- is constitutional, meaning the plaintiffs' claim that their free speech rights were "violated" was, well, "nice try," let's put it that way.

Law schools had become the latest battleground over the "don't ask, don't tell" policy allowing gay men and women to serve in the military only if they keep their sexual orientation to themselves. Many universities forbid the participation of recruiters from public agencies and private companies that have discriminatory policies.

[Chief Justice John] Roberts, writing his third decision since joining the court, said there are other less drastic options to protest the policy. "A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message," he wrote.

The federal law, known as the Solomon Amendment after its first congressional sponsor, mandates that universities give the military the same access as other recruiters or forfeit federal money.

I had thought this would be a slam dunk against the plaintiffs from the get-go. It seemed ludicrous on the face of it that they wanted the government's money, but then at the same time didn't want any strings attached whatsoever. Oops.

UPDATE: The SCOTUS decision seems to indicate that even if universities do not receive federal funding, they'd still have to allow recruiters on campus. Indeed, in Rumsfeld v. Forum for Academic and Institutional Rights, the Court said

The Constitution grants Congress the power to "provide for the common Defence," "[t]o raise and support Armies," and "[t]o provide and maintain a Navy." Congress' power in this area "is broad and sweeping," and there is no dispute in this case that it includes the authority to require campus access for military recruiters. . . .

This case does not require us to determine when a condition placed on university funding goes beyond the "reasonable" choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.

I would assume this has to apply only to public universities. I cannot see how the federal gov. (especially one that receives no federal monies) could force a private campus to allow military recruiters there.

Posted by Hube at March 6, 2006 11:45 AM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)

I agree, Hube...I thought the same thing when the case was filed. It's ludicrous and is an explicit violation of the First Amendment. Now if only the military would realize its own foolishness with DADT...

Posted by: Mike M. at March 6, 2006 12:15 PM

The best part about it......9-0!!

Posted by: Delathought at March 6, 2006 04:04 PM

Mike -- you just disagreed with everything Hube just said.

But it is really simple to decide this one -- the acceptance of federal money imposes certain burdens on the recipient. Every last one of these schools could avoid having any such requirement placed upon them simply by refusing all federal funding for research, financial aid, etc. I know there are a few colleges that manage to p[erate in precisely that manner, based upon a large endowment and generous donors. All that is needed is a desire to get off the federal teat -- something that these folks are steadfastly unwilling to do.

Posted by: Rhymes With Right at March 6, 2006 04:08 PM

Oh, by the way -- I like the crumpled paper.

Posted by: Rhymes With Right at March 6, 2006 04:08 PM

Yeah, Mike -- I was wondering ... are we really on the same wavelength here?

DT: It was an 8-0 decision, actually. Alito wasn't present since he hadn't heard previous arguments.

RwR: Thanks! The MuNu tech helpers have been awesome with their assistance! :-)

Posted by: Hube at March 6, 2006 04:12 PM

I confused the heck out of myself as well. Let me clarify. The colleges were wrong. This isn't necessarily a free speech issue, though the implications are there (the military's speech, that is). The colleges receive funding from the government that explicitly states that allowing military recruiters is part of the deal to receive said funds. The colleges behaved stupidly in this fight, though I feel they were somewhat admirable.

The colleges were foolish for this behavior. The military is foolish with DADT.

Posted by: Mike M. at March 6, 2006 05:00 PM