Wisdom of Solomon

Trinity Law School has always been eager to host recruiters from the U.S. armed forces or other agencies of the Federal Government. But not all law schools are so supportive of the military.

The Supreme Court of the United States has once again within this term presented us with an opinion which is both unanimous and happy in its outcome. A group of law schools associating under the label FAIR have been unhappy for some time with the congressionally authorized Defense Department policy of not allowing openly homosexual persons to serve in the Military. Because of their unhappiness, they have sought to prevent Defense Department recruiters from recruiting on campus. The Congress in turn has sought to pressure the law schools into allowing military recruiting with a law called the Solomon Amendment. The Solomon Amendment basically requires a law school to provide equal access by military recruiters. Under the law, military recruiters are entitled to the same treatment provided to recruiters of any other type. If an institution violates the law, it can lose federal funding.

A large number of law schools (not including Trinity Law School) challenged the Solomon Amendment and their challenge ultimately found its way to the Supreme Court under the title Rumsfeld v Form for Academic and Institutional Rights Inc.

In an opinion written by Chief Justice Roberts, the Supreme Court rejected the positions put forward by FAIR and a variety of amicus briefs. In first dealing with the amicus briefs, the Court rejected the idea that the Solomon Amendment could be fairly interpreted to allow the law schools to discriminate against the Military if they also discriminated against other organizations that would not sign their non-discrimination policies. The Court noted that the Solomon Amendment does not focus on the content of the school’s recruiting policy, but rather upon equal access without regard to content. “Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that provided to any other employer.” This is another small victory that shows that the current Supreme Court is willing to interpret statutes properly, looking at their text and the intended meaning communicated by that text and the context in which it appears. Had the Court gone the other way, they would have been rejecting the obvious purpose of the Solomon Amendment and attributing to the text a meaning that it did not have.

The Court noted that Congress had the power to enact the Solomon Amendment under the Constitution’s grant of power to provide for the common defense. The Court noted too that denial of funding based upon conditions has already been upheld in many contexts including Title IX of the Education Amendments. The Court said “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obliged to accept.” The Court also noted though that Congress’ ability to “place conditions on receipt of funds” is not unlimited. The government may not withhold funds in violation of a constitutional right or in order to infringe upon a constitutional right. The Court notes, however, that here the Congress had the constitutional power to require the schools to provide access to military recruiters and hence they could not be violating the Constitution by withholding funds in vindication of that power. The Court said, “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.”

The Court then went into the question of whether or not the Solomon Amendment in any way interfered with the law school’s freedom of speech or association. It wisely concludes that it does not. “The Solomon Amendment neither limits what the law schools may say nor requires them to say anything. Law schools may 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 Court concludes that “the Solomon Amendment regulates conduct, not speech. It affects what the law schools must do—afford equal access to military service recruiters—not what they may or may not say.” This conclusion is very encouraging. Over the years, the Court had become more and more absurd in determining what is and what is not protected speech. Things had become so bad that the public expression of obscenities and exotic dancing are considered protected speech but some forms of political speech under the First Amendment are not given the protection of free speech. Hopefully, the Rumsfeld case is some evidence that the pendulum is swinging back and that the Court will take a more common sense view of the difference between speech and conduct.

The Court noted that the Solomon Amendment is not putting speech in the mouths of the schools simply because recruiters are allowed to be on campus or to speak on campus. Schools were required to put out notices of the recruiter’s presence if they put out notices for other recruiters. But this was not compelling the schools to undertake a “message” that they in some way disagreed with. The Court noted, quoting a previous opinion, that “words can in some circumstances violate laws directed not against speech but against conduct.” But that “compelling a law school that sends scheduling emails for other recruiters to send one for military recruiters is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”

The Court also distinguished cases involving parades where the Court had allowed organizations to exclude organizations that did not share their ideals from being part of a parade. The Court noted that in those cases, compelling participation would interfere with the speaker’s message. But 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.” The Court concludes, “Nothing about recruiting suggests the law school agrees with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the Military’s policies.”

The Court does continue to endorse a line of cases that is somewhat troublesome by concluding that some kinds of conduct is inherently expressive and protected by the First Amendment. But the High Court rejects the idea that recruiting is that sort of expressive conduct. “The expressive component in a law school’s actions is not created by the conduct itself, but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O’Brien.”

The Court also rejects FAIR’s argument that the Solomon Amendment violates their freedom of expressive association. The Court notes that “to comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore ‘associate’ with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition outsiders who come on to campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association. This distinction is critical. Unlike public accommodations law in Dale, the Solomon Amendment does not force a law school ‘to accept members it does not desire.’” The Court further said “students and faculty are free to associate to voice their disapproval of the Military’s message; nothing about the statute affects the composition of the group by making a group membership less desirable. The Solomon Amendment therefore does not violate a law school’s First Amendment rights.”

A robust freedom of speech and association is a good thing. But it is not appropriate to stretch the protection of the First Amendment to cover conduct that is evil or against public policy. Here the Court has made a principle decision upholding many of its prior speech and association cases, but ending what it characterizes as FAIR’s attempt to stretch First Amendment doctrines beyond the sort of activities that those doctrines actually protect.