Supreme Court Upholds Soloman Act 8-0

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.


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.


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.”


FILED UNDER: Congress, Law and the Courts, LGBTQ Issues, Military Affairs, Supreme Court, US Constitution, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. LJD says:

    Don’t ask don’t tell is a smokescreen. The liberal left could never seriously doubt a solution proposed by the infallible President Clinton.

    This is more about not liking the military, and wanting to shield their graduates from lucrative career possiblities in the military. A military career goes against all the liberal horsecrap being pumped out of many of our institutions of higher learning.

    It is refreshing to see the court unanymously remind them which side their bread is buttered on. If they are true to their convictions, they can give up the cash, but I’m not holding my breath.

  2. legion says:

    And yet this is also a waterline shot at the old conservative standard of states’ rights: The federal gov’t can hold you to federal standards if you want to suck at the federal teat. Not a particularly revolutionary statement, but one that should give the rightys some pause before they dance in the streets about this one…

  3. LJD says:

    Sour grapes to some, are very sweet for others.

  4. Wulf says:

    I think it is important to note that the justices did not imply that Congress could use the Solomon Amendment to order to force schools to admit recruiters. It seemed to me more like a matter of saying in arguments that the outcome of this case on the Solomon Amendment could not possibly restrict Congress in its greater ability to raise armies.

    This decision is pretty clear in saying that recruiters can be banned from campus by any school that refuses funds (page 9, just a couple of paragraphs after what you quote).

  5. Jack Ehrlich says:

    Devils advocate. Do you understand the difference between a recruiter and a draft board? Service in the Texas Air National guard, flying F102s is a lot more than his predecessor did. Cheney has devoted his life to public service. With whom did you serve? The SDS or the Weathermen? Bush gained wealth in oil, Clinton gained wealth by selling technology to the Chinese. His butt ugly wife gained wealth by lying about history in books, sold to you and your ilk.

  6. legion says:

    It’s amazing how angry some wingers can be, even when they get ostensibly _good_ news for their cause…

  7. Brian says:

    It may surprise some commenters here, but there are many liberals (myself included) that believe that this was the right ruling. After all, Title IX was imposed virtually the same way.

    LJD: Clinton is really not very popular here on the liberal left. Most of his support is from more centrist members of the party. And if Hilary gets the nomination, it won’t be because of the far left either. We seem to be moving for Feingold at this point.

  8. Herb says:

    Now we will all be able to see if these schoo;s that banned the recruiters have the courage of their convictions.

    My money would be on the schools taking the money and forgetting all about their convictions.
    The spineless bast**ds.

  9. Devil's Advocate says:


    They are angry because they are among the 34% minority that supports Bush. They are angry because they swallowed BushCo’s b.s. hook, line, and sinker, and now they are confronted, every day, day after day, with evidence that Bush is an incompetent, an intellectual dwarf, a sociopathic liar, a thief, a law-breaker, and a dictator. Their emperor is butt-naked for the world to see.

    Of course, being right nutters, i.e., having a low I.Q. in addition to being pathologically insane, they are incapable of admitting mistakes. So, they are desperately clinging to their myth.

    Watch for them to get more desperate hence angrier as the months go by and the full extent of the criminality of the Bush Administration and the Republican Congress is exposed.


  10. floyd says:

    again it is unacceptable to state the obvious without provoking the ire of the extreme left wing lynch mobs,who ostensibly champion free speech[lol]… kill the light ,or run for the woodwork!

  11. Jim says:

    Of course the Devil’s Advocate doesn’t have the courage of his convictions since his e-mail address isn’t part of his comment.

  12. Herb says:

    WOW, Devils Advocate has a lot of Hate and Discontent bottled up inside his little mind, doesn’t he?

    I bet he’s a lefty.

  13. Devil's Advocate says:

    Hate? Don’t flatter yourself. I would not want to waste energy hating the likes of you.

    Boundless contempt is more like it. As far as I am concerned, the bushies are the dregs of humanity.

    By the way, only 1/3 of Americans now support Bush. 1/3 of Americans are morbidly obese. I wonder if this is the same 1/3? That would explain a lot…

  14. LJD says:


    Did you have anything relevant at all to comment about the original post, or are you just blabbering?