The Supreme Court unanimously ruled that Congress can require law schools to grant military recruiters the same access to students as they do other employers, or risk losing all federal funding. The 21-page decision on Rumsfeld v. Forum for Academic and Institutional Rights ( FAIR ) was handed down March 6.
The law schools who are members of FAIR had argued that they historically have had a policy of nondiscrimination and over the years have extended that to include sexual orientation. Forcing them to aid the military, a group that discriminates through the antigay policy known as 'Don't Ask, Don't Tell,' is an unconstitutional violation of their right to free speech under the First Amendment.
A federal district judge did not agree, but FAIR won the support of two of the three appeals judges in the Third Circuit based in Philadelphia, and the Pentagon appealed that decision to the Supreme Court.
Chief Justice John Roberts, in only his third opinion, reviewed previous relevant decisions by the Court that established what is known as the unconstitutional conditions doctrine. He wrote, 'It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly' by Congress.
'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.'
He called the speech impact of the law 'incidental' to the action of providing access, comparing it to an act of Congress to prohibit racial discrimination in hiring that would 'require an employer to take down a sign reading 'White Applicants Only.'
Forcing a law school to send e-mails and post notices that a military recruiter would be on campus at a particular time and location 'is simply not the same as forcing a student to pledge allegiance or for a Jehovah's Witness to display the motto 'Live Free or Die' [ two famous cases that FAIR tried to invoke ] , and it trivializes the freedom protected in [ those cases ] to suggest that it is.'
Roberts cited cases where the Court held that high school students can appreciate the difference between speech that a school sponsors and speech that it permits because it is legally required to do so. In a sly dig he concluded that section by saying, 'Surely students have not lost that ability by the time they get to law school.'
The Court also took the law schools and professors to task in its closing remarks saying, 'In this case, FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect.'
'This decision effectively forces our university to allow employers on campus who refuse to hire some of our students simply because of their sexual orientation. In so doing, the decisions legitimates a form of blatant discrimination,' said Matthew Connolly, cofounder of the Anti-Discrimination Working Committee at the Georgetown University Law Center. Georgetown was one of the leaders of the FAIR petition.
Lambda Legal filed an amicus brief on the case. Legal director Jon Davidson said, 'Though recruiters cannot be stopped from entering campuses, universities have an opportunity and an obligation to teach their students about fairness in the workplace, including the US military.' It is preparing materials on actions that law schools and students can take in response to the presence of military recruiters on campus.
Sharra E. Greer, legal director of the Servicemembers Legal Defense Network ( SLDN ) , noted that historically the military has been a leader in breaking down barriers of discrimination against blacks and women.
'With or without the Solomon Amendment, our armed forces should lead, and not follow, in their commitment to equal opportunity,' She urged 'ever commander who values qualification above prejudice ' to join SLDN in calling for the repeal of 'Don't Ask, Don't Tell.'