The Supreme Court unanimously upheld the Soloman Act, ruling that the federal government has a right to insist that colleges who take federal money allow recruiters on campus.
The Supreme Court ruled unanimously Monday that colleges that accept federal money must allow military recruiters on campus, despite university objections to the Pentagon’s “don’t ask, don’t tell” policy on gays. Justices rejected a free-speech challenge from law school professors who claimed they should not be forced to associate with military recruiters or promote their campus appearances. Chief Justice John Roberts wrote the unanimous decision.
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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.
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Roberts filed the only opinion, which was joined by every justice but Samuel Alito. Alito did not participate because he was not on the bench when the case was argued. “The Solomon Amendment neither limits what law schools may say nor requires them to say anything,” Roberts wrote.
While I am not surprised by the ruling, I am surprised that it was unanimous. Orrin Kerr called this one last May:
I don’t think it will be close, either: maybe 9-0, with a concurrence or two. But of course these things are tough to predict. (To go further out on a limb, I also predict that a new Chief Justice will be presiding by the time the case is argued next fall and that the new Chief will assign the majority opinion to him/herself.)
Right on all counts except for the minor technicality that Alito, a sure vote on this one, sat it out. (Update: Kerr points this out in his wrapup of the decision, but I noticed it when compiling the related posts section below.)
While I was spectacularly wrong in predicting “a narrow margin,” I at least got the reasoning right:
[T]he federal government isn’t compelling the schools to even tacitly agree with the Defense Department’s policy on gays. The school could hold symposia condemning the practice, allow school-sanctioned groups to protest the policy, and so forth. They merely have to allow military recruiters access to school grounds to exercise their speech rights. And, if they find that burden too onerous, they can merely forego subsidy from the federal taxpayer.
I should note, though, that the reference to “the Defense Department’s policy” is actually imprecise: It is Congress’ policy as implemented in DoD regulations.
Update: Lyle Denniston has read through the decision and it was even more of a slam dunk than 8-0 suggests.
Finding that Congress had the constitutional authority, under its power to “raise and support armies,” to command colleges to accept military recruiters, so there was no constitutional problem in achieving the same result by threatening to cut off federal funding if equal access is denied, the Court said. “It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly,” it added.
So–without even a concurring opinion by one of the Court’s liberals–the unanimous court ruled that Congress could simply order schools to admit recruiters even if the schools were not receiving federal funds. Indeed, Marty Lederman adds,
The implication is that schools must afford DoD exemptions from any recruiting rules that have the effect of giving the military less access to students than some other employer. Thus, the holding is that the government may require schools (including private schools) to give preferential access to military recruiters, without any First Amendment concerns.
Whoa. That strikes me as a bit much, but I have not studied that aspect of the case law.
See OTB News for a roundup of mainstream press coverage of the story.
Update 2: UCLA Law prof Steve Bainbridge has some insights into the decision as well, noting that, “this opinion tends to confirm the very high hopes many of us had for Roberts – well-argued, cleanly written, and sufficiently persausive to pull in 9 votes.”
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