The Supreme Court today ruled 8-0 that Congress can restrict funding to universities that ban
ROTC military recruiters. [DavidNYC kindly pointed out to me I have ROTC on the brain. The issue was military recruiting on campus.] In
Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the Court held that:
Because Congress could require law schools to provide equal access to military recruiters without violating the schools' freedoms of speech and association, the Third Circuit erred in holding that the Solomon Amendment likely violates the First Amendment.
Chief Justice Roberts, writing for the Court, described the Congressional power at issue as follows:
The Constitution grants Congress the power to "provide for the common Defence," "[t]o raise and support Armies," and "[t]o provide and maintain a Navy." Art. I, §8, cls. 1, 12-13. Congress' power in this area "is broad and sweeping," O'Brien, 391 U. S., at 377, and there is no dispute in this case that it includes the authority to require campus access for military recruiters. That is, of course, unless Congress exceeds constitutional limitations on its power in enacting such legislation. See Rostker v. Goldberg, 453 U. S. 57, 67 (1981). But the fact that legislation that raises armies is subject to First Amendment constraints does not mean that we ignore the purpose of this legislation when determining its constitutionality; as we recognized in Rostker, "judicial deference ... is at its apogee" when Congress legislates under its authority to raise and support armies. Id., at 70.
Although Congress has broad authority to legislate on matters of military recruiting, it nonetheless chose to secure campus access for military recruiters indirectly, through its Spending Clause power. The Solomon Amendment gives universities a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds. Congress' decision to proceed indirectly does not reduce the deference given to Congress in the area of military affairs. Congress' choice to promote its goal by creating a funding condition deserves at least as deferential treatment as if Congress had imposed a mandate on universities.
Congress' power to regulate military recruiting under the Solomon Amendment is arguably greater because universities are free to decline the federal funds. In Grove City College v. Bell, 465 U. S. 555, 575-576 (1984), we rejected a private college's claim that conditioning federal funds on its compliance with Title IX of the Education Amendments of 1972 violated the First Amendment. We thought this argument "warrant[ed] only brief consideration" because "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept." Id., at 575. We concluded that no First Amendment violation had occurred--without reviewing the substance of the First Amendment claims--because Grove City could decline the Government's funds. Id., at 575-576.
. . . The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools "could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests"). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do--afford equal access to military recruiters--not what they may or may not say.
(Emphasis supplied.) Chief Justice Roberts deftly relies on Grove City, which should make us all understand what an acceptance of the arguments by the academic institutions might entail - a rollback of a generation of civil rights laws relying upon the Spending Power.
The most interesting counterpoint is the Dale case, which involved the SCOTUS striking down a New Jersey law that, by operation, required the Boy Scouts of America to not exclude gays from participating as scoutmasters, ruling the law was an unconstitutional infringement upon the Boy Scouts' First Amendment rights. I'll discuss the argument on the flip.
Chief Justice Roberts stated that:
FAIR argues that the Solomon Amendment violates law schools' freedom of expressive association. According to FAIR, law schools' ability to express their message that discrimination on the basis of sexual orientation is wrong is significantly affected by the presence of military recruiters on campus and the schools' obligation to assist them. Relying heavily on our decision in Dale, the Court of Appeals agreed. 390 F. 3d, at 230-235.
In Dale, we held that the Boy Scouts' freedom of expressive association was violated by New Jersey's public accommodations law, which required the organization to accept a homosexual as a scoutmaster. After determining that the Boy Scouts was an expressive association, that "the forced inclusion of Dale would significantly affect its expression," and that the State's interests did not justify this intrusion, we concluded that the Boy Scout's First Amendment rights were violated. 530 U. S., at 655-659.
Dale is easily distinguished from the ROTC case, and Chief Justice Roberts does so:
The Solomon Amendment, however, does not similarly affect a law school's associational rights. To comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore "associate" with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students--not to become members of the school's expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school " 'to accept members it does not desire.' " Id., at 648 (quoting Roberts, supra, at 623). The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, see supra, at 16, so too a speaker cannot "erect a shield" against laws requiring access "simply by asserting" that mere association "would impair its message." 530 U. S., at 653.
Now to be clear, Dale is not a defensible decision period. The exercise is simple enough. Replace black for gay. Moreover, Dale gives no solace to the schools here. The Solomon Amendment, as well as for the reasons Chief Justice Roberts describes, is also different because it is an exercise of the Spending Power, clearly leaving the choice to the schools. They can speak as they choose. They are not entitled to federal money.
Again, the exercise is a simple one for me - think of Title IX. Grove City.
The Supreme Court got it right here.