Supreme Court to Consider Military Recruting Ban

The U.S. Supreme Court has agreed to decide the constitutionality of the Soloman Amendment, which requires colleges to grant military recruiters access to their campuses if they wish to keep federal funding for any program.

Supreme Court to decide if colleges can bar recruiters (AP USAT, WaPo)

The Supreme Court said Monday it will consider whether colleges and universities may bar military recruiters from their campuses without fear of losing federal funds. Justices will review a lower court ruling in favor of 25 law schools that restricted recruiters in protest of the Pentagon’s policy of excluding openly gay people from military service. That ruling, by the Philadelphia-based 3rd U.S. Circuit Court of Appeals, invalidated a 1994 federal law requiring law schools to give the military full access or else lose their funding, saying it infringed on law schools’ free speech rights. The Supreme Court will hear the case during its next term, which begins in October.

The law, known as the Solomon Amendment, has been controversial for law schools that have nondiscrimination policies barring any recruiter — government or private — from campus if it unfairly bases hiring on race, gender or sexual orientation. “The Solomon Amendment forces the law school to violate its own policy and actively support military recruiters who come onto campus to engage in the very discriminatory hiring practices that the law school condemns,” writes the law school coalition, known as the Forum for Academic and Institutional Rights.

The Bush administration counters in court filings that equal access is necessary to fill the military’s legal ranks “in a time of war.” It said the law does not violate free speech rights because schools are free to protest so long as they are willing to forgo federal research dollars, which amount to hundreds of millions at some schools. “The Solomon Amendment reflects Congress’ judgment that a crucial component of an effective military recruitment program is equal access to college and university campuses,” acting Solicitor General Paul Clement writes.

The Court has held, in the past, that a compelling government interest may override free speech rights. For example, one could be prosecuted for burning one’s Selective Service card because such would interfere with a legitimate government program. Traditionally, though, the Court has required that the government have no less intrusive means available to it to achieve the desired result. One could argue, reasonably, that military recruiters could set up shop immediately off campus with little harm to its efforts. Finally, the Court has given quite a bit more latitude toward governmental conditions for receiving funds than outright mandates. Congress likely does not have the power to set a national drinking age, for example, but it has been free to require states to adhere to one in order to receive highway funding.

It’ll be an interesting case and likely one decided by a narrow margin.

Update (1330): Orin Kerr predicts a 9-0 reversal.

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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. GP says:

    This case is a classic example of the wonderful inefficiency of our government system. The real issue here is whether it is constitutional for the Federal government to discrimintate against gays who want to protect and fight for their country. The matter at hand in this case is more of a side show that errupted as a result of overboiling tempers of the right and left.

    I don’t mean to say that the inefficiency is bad. Our system has worked so well for so long, and there is certainly an argument that this inefficiency has a positive effect of cooling tempers at the fringes while the majority of the country gets comfortable with social progress.

    Like with many past social movements in America, gays will achieve equal footing in US society one day. Barely a week goes by that gays aren’t awarded equalized rights in some jurisdiction of our country or our allies. At some point if the US doesn’t equalize rights, their ability to be a member of the global economy and society will deminish. It is really all a matter of timing as to when gays get these rights here. Sometimes our country is painfully frustrating though in its slow path to progess on social issues.

  2. montana wildhack says:

    Ann Althouse also predicts this will be overturned 9-0. (sorry, too lazy to look for link!)

  3. McGehee says:

    The real issue here is whether it is constitutional for the Federal government to discrimintate against gays who want to protect and fight for their country.

    That’s a bigger issue than the ability of the armed forces to recruit the people it wants and needs, so that it can protect the rights of malcontents to gripe about how American society doesn’t do everything their way?

    Um, I don’t think so.

  4. Neo says:

    I predict that the Supremes will throw out the 1st Amendment argument completely and instead cite the 14th Amendment, as this is simply a term of a (pseudo) commercial activity, much the way the whole slew of educational Title programs are enforced.

    Golden Rule: he who has the gold makes the rules.