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.
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 Ã¢€” government or private Ã¢€” 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.