Eminent Domain

In a unanimous opinion, the Supreme Court upheld the Solomon Amendment, which says that colleges that accept federal money must allow military recruiters on campus. The petitioners in the case were a group of law schools and law professors who argued against the Solomon Amendment on free speech grounds. The Pentagon's "Don't Ask, Don't Tell" policy, which bars publicly identified homosexuals from serving in the military, was at the heart of the controversy.

The petitioners, FAIR (Forum for Academic and Institutional Rights), argued that they had recruitment policies that barred other employers who discriminate, so they should be able to bar the military too. Writing for the Court, Chief Justice Roberts shot that down.


First, he looked at the issue of access...

The statute requires the Secretary of Defense to compare the military's "access to campuses" and "access to students" to "the access to campuses and to students that is provided to any other employer." (Emphasis added.) The statute does not call for an inquiry into how or why the "other employer" secured its access.

That seems to take the teeth out of citing a school's discrimination policies in this instance. The Chief looks at the effects of those policies, if they were allowed to stand...

Applying the same policy to all recruiters is insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that 'provided to any other employer.' ...Under the statute, military recruiters must be given the same access as recruiters who comply with the [schools' non-discrimination] policy.

The result is that schools must exempt the Pentagon from any recruiting rules that would effectively give the military less access to the campus and students than other employers. This would give military recruiters an edge over other employers that had similar discriminatory policies.

Here's the Chief showing some of that wit of his...

Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military'’s policies. We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. (citations omitted) Surely students have not lost that ability by the time they get to law school.

This really shouldn't be a shocking decision for anyone who has followed the case. Last December, I made this post after listening to the oral arguments. I felt that the only votes in play were those of Justices Souter and Ginsburg, but even those were likely to uphold the law. Keep the unanimous decisions coming...

EDIT: I forgot to point out that the Court didn't even tie this power of Congress to the Spending Clause. That's the route that I thought they would go. The Court went another way entirely. Congress, having the constitutional power to raise and maintain armies, did not actually need to tie it to funding, and could have demanded outright that schools open their doors to the recruiters. FAIR actually ended up worse than they started because of this lawsuit. Ouch.