In a decision which was expected to come out this way but was not expected to be
unanimous, an 8-0 Supreme Court decided today that the federal government could require the military (principally, JAG) to be given access to those campuses even if it violates the law schools' policy against facilitating anti-gay discrimination.
As SCOTUSblog summarized, "The ruling rejected all of the law schools' First Amendment claims, including assertions that they were being coerced into supporting the idea of discrimination against gays, and that they were being denied academic freedom in running their career placement activities. The ruling overturned a decision by the Third Circuit Court striking down the "Solomon Amendment." Under that Amendment, colleges that deny equal access to military recruiters may lose all federal funds to their entire institution."
Honestly? This is one of those cases about which I think you have to say that no matter how stupid the underlying policies are (the Solomon Amendment itself, and Don't Ask, Don't Tell), so long as DA/DT is constitutional, so too is the Solomon Amendment. As I like to say, not every bad thing the government does is unconstitutional, and not every bad thing has a judicial remedy.
Chief Justice Roberts' opinion for the Court is here. Some excerpts follow, with internal cites deleted:
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," 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. 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. . . .
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. . .
In this case, accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school's recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter's message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school. . . .
FAIR [the law schools] 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. . . . 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 gay Boy Scouts case], the Solomon Amendment does not force a law school " `to accept members it does not desire.' " 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, so too a speaker cannot "erect a shield" against laws requiring access "simply by asserting" that mere association "would impair its message."
. . . Students and faculty are free to associate to voice their disapproval of the military's message; nothing about the statute affects the composition of the group by making group membership less desirable. The Solomon Amendment therefore does not violate a law school's First Amendment rights. A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message.