The Supreme Court Upholds the Federal Statute Giving Military Recruiters Campus Access, Despite "Don't Ask, Don't Tell,"
With Chief Justice Roberts Following Rehnquist's Opinion Style

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Mar. 09, 2006

On Monday, March 6, the Supreme Court - in an opinion penned by Chief Justice Roberts -- decided Rumsfeld v. Forum for Academic Institutional Rights, Inc. It had been presented as an important free speech case. The twist: It wasn't really a free speech case at all. Fortunately, the Court unanimously saw through the plaintiffs' rhetoric. (Justice Alito did not participate in the decision, but all eight justices who did agreed.)

At issue was a federal law -- the Solomon Amendment, which requires universities, including law schools, to provide military recruiters at least as good access to students as other on-campus recruiters enjoy, on pain of losing federal funding (of all kinds, except student financial assistance). Law professors and law schools had argued that such a law violated their right to free speech and freedom of association.

The Plaintiffs and Their Argument

As I explained in a prior column, the Forum for Academic Institutional Rights (FAIR) is a cleverly-named group of law schools and law professors. They argued to the Court that the very presence of military recruiters on campus meant that observers would believe that the law schools supported the government's "don't ask, don't tell" policy regarding homosexuals in the military.

Yes, you read that correctly: They actually had the temerity to argue that they could be confused with conservatives. Based on the overwhelming majority of liberals among law professors, Deans, and their trade association, the Association of American Law Schools, the federal courts should have considered Rule 11 sanctions - the sanctions imposed on a plainly frivolous filing.

The Court's Opinion

In a relatively brief opinion, the Chief Justice cut to the chase: This was not a free speech case at all - for two simple reasons.

First, the First Amendment prohibits censorship or suppression of speech. But no speech of or by the schools or the professors was censored - or threatened in any way. Under the Solomon Amendment, the schools and professors could comment on, and protest, on-campus military recruitment and the "Don't ask, don't tell" policy to their hearts' content. And, boy, have they.

Second, the First Amendment also prohibits compelled speech - such as forcing someone to mouth the Pledge of Allegiance. But the government was not compelling the professors or schools to say anything at all. To the contrary, as noted above, it left their freedom to speech intact.

As I discussed in my previous column, the Solomon Amendment is a regulation of conduct (opening an interview room door) and not of speech. That's why the law professors' and schools' argument was a stretch, even if viewed charitably.

Even if there were speech involved, it was the government's speech, which no one could or would confuse with the law schools' speech.

Finally, even assuming for a moment that the professors' and schools' free speech rights were being suppressed somehow by the recruiting accommodation requirement, the interest of the government in building a strong military -- including talented military lawyers -- weighed far more heavily in the balance. This is especially true because, as the Court noted, "'judicial deference . . . is at its apogee' when Congress legislates under its authority to raise and support armies" - which plainly encompasses recruitment.

Will This Be the Rehnquist/Roberts Court? A Continuity of Style and Approach

Setting aside doctrine, the opinion also is worth some attention based on its style and approach. Indeed, it begins to make the case for calling this the Rehnquist/Roberts Court.

In Chief Justice Rehnquist's tradition, Roberts' opinion is brief, to the point, and calculated to garner as many votes as possible. (As an Associate Justice, Rehnquist was known for sharp dissents, but when he ascended to the Chief spot, he shifted perceptibly toward building coalitions.)

Also paralleling Rehnquist, Roberts' opinion is impatient with frivolous arguments and claims that are belied by simple common sense.

For example, the Court notes that "certain law professors" argued that under the statute, law schools had two choices to achieve "equality" between military recruiters and others: treat them all the same, or exclude recruiters altogether. In response, the Court pointed out what should have been obvious: the purpose of the Solomon Amendment was to ensure access for military recruiters to campus - not a formalistic equality between recruiters.

There is also a dry wit to the opinion that is highly reminiscent of Roberts' former boss, Rehnquist. (Roberts was a law clerk for Rehnquist.) The government had argued that the Court should not even reach the "technical equality" argument made by those "certain law professors," because it was outside the "Questions Presented" upon which the Court had granted review. In response, the Chief Justice deadpanned, "there can be little doubt that granting certiorari to determine whether a statute is constitutional fairly includes the question of what that statute says." One would think so!

Witty, too, is the Court's rejection of FAIR's claim that law students will think their schools and professors are backing the "Don't ask, don't tell" policy by permitting the military to interview on campus. In response, Roberts points out that in Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, the Court had upheld the Equal Access Act, requiring schools to permit religious clubs on campus, on the ground that high school students had the ability to divine the difference between a club's message and the school's views. The same was true here, he continued, because "[s]urely students have not lost that ability by the time they get to law school."

Putting the Controversy in Perspective: A Far Cry from Key Precedents

Moreover, the Chief placed the entire controversy into perspective, when he declared that there is nothing in this case that begins to implicate the important constitutional interests vindicated in West Virginia Bd of Ed. v. Barnette, which held that public schools could not mandate the recitation of the Pledge of Allegiance, or Wooley v. Maynard, which held that the state of New Hampshire could not mandate that its residents carry "Live Free or Die" on their license plates.

These are classic "compelled speech" cases. FAIR had relied heavily on these holdings to argue for its right to keep military recruiters off-campus so no one would think they favored don't ask, don't tell. But as the Court made clear, no one was making the law professors or schools say anything; the Solomon Amendment, instead, simply made them do something: open interview rooms to recruiters on campus.

The opinion ends, accordingly, on a delightful lecture to the law professors: "the law schools' effort to cast themselves as just like the school children in Barnette, the parade organizers in Hurley, and the Boy Scouts in Dale plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents." (Hurley was the parade case where the Court held that a St. Patrick's Day parade organized by a private group could not be forced to include views with which they disagreed; Dale held that the Boy Scouts could not be forced by a state accommodation law to hire homosexuals as scoutmasters, because it would violate their freedom of association.)

In other words, the Court caught the law professors and schools bending doctrine to their own political agendas - and appeared to take some pleasure in saying so.

The Court was absolutely right when it pointed out who's really "exaggerating" here. Liberal law professors, especially those at the Ivy League schools leading the charge in FAIR, have made a cottage industry out of stridently criticizing the Rehnquist Court for being "imperialistic" and stretching doctrine -- merely because it re-introduced the concepts of enumerated powers and states rights, which are firmly grounded in the text and history of the Constitution. But here, as the Court noted, it was they who were really doing the stretching - broadening the rule against government-compelled speech to encompass a rule against compelled action, thereby leaving the text, doctrine, and history of the First Amendment in the dust.

Because it said something that needed to be saying, and said it pithily and stingingly, this particular part of the opinion was especially rich.

In sum, the unanimous Rumsfeld v. FAIR opinion reached its result by applying well-settled constitutional principles, and thus was plainly correctly decided. In addition, it made it abundantly clear that the Rehnquist Court is still with us in spirit - and maybe for a long time to come.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Hamilton02@aol.com. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).