Today's
Supreme Court decision on military recruitment was reviewed favorably in diaries by
Armando,
Adam B, and
YoGo. When I commented before in two of those diaries, I hadn't read the opinion, but I had assumed that they must be right. Now I've read it. With due respect to these fine legal thinkers, I think they're wrong this time.
My argument is too long for comments, so I'm spending my diary for today on it; I'm sorry if that seems repetitive, but I think the content here will differ from what's come before. The law enacted in the Solomon Amendment runs afoul of the "unconstitutional conditions" doctrine, and you can't condition federal funding on a recipient's refusal to accept an unconstitutional condition. (I assume that we can all agree on that.) The rest of my argument is below.
Here's the problem I have with
Rumsfeld v. FAIR, today's decision on military recruiters' access to law schools.
In section III.A.1, Chief Justice Roberts writes (citations omitted):
Some of this Court's leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say. In West Virginia Bd. of Ed. v. Barnette we held unconstitutional a state law requiring schoolchildren to recite the Pledge of Allegiance and to salute the flag. And in Wooley v. Maynard we held unconstitutional another that required New Hampshire motorists to display the state motto--"Live Free or Die"--on their license plates.
The Solomon Amendment does not require any similar expression by law schools. Nonetheless, recruiting assistance provided by the schools often includes elements of speech. For example, schools may send e-mails or post notices on bulletin boards on an employer's behalf. Law schools offering such services to other recruiters must also send e-mails and post notices on behalf of the military to comply with the Solomon Amendment. As FAIR points out, these compelled statements of fact ("The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m."), like compelled statements of opinion, are subject to First Amendment scrutiny.
This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley. The Solomon Amendment, unlike the laws at issue in those cases, does not dictate the content of the speech at all, which is only "compelled" if, and to the extent, the school provides such speech for other recruiters. There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse.
The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment's regulation of conduct, and "it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney v. Empire Storage & Ice Co. Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating the employer's speech rather than conduct. See R. A. V. v. St. Paul ("[W]ords can in some circumstances violate laws directed not against speech but against conduct"). Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah's Witness to display the motto "Live Free or Die," and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.
Look carefully at that last line: "forcing a Jehovah's Witness to display the motto." That's an interesting and misleading gloss on what Wooley says. Maynard, the Jehovah's Witness in question, did indeed object to being forced to become "a `mobile billboard' for the State's ideological message" on religious grounds - but that wasn't why he won. Rather, as the Wooley court held, the state could not impose a measure that:
forces an individual ... to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable. In doing so, the State "invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."
In other words, Wooley wasn't about religious practice, but ideological compulsion.
Roberts holds that placing "being forced to send e-mails facilitating military recruitment" in the same category as "being forced to display a state motto on one's license plate" "trivializes" the latter protected freedom. He can make this claim only by ignoring the fine print on the military recruitment notice. This is language that the law school can see, that the students can see, and that the military recruiters themselves can see. Everyone can see this language, evidently, but the Roberts Court. Take a close look at the hypothetical e-mail quoted in the above excerpt from the decision:
The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.
No homosexuals may apply.
That is the message Roberts requires law schools to send when offering recruiting assistance to employers: "No homosexuals may apply." The message is implicit, but it is unquestionably there - and even the Chief Justice knows it. To force law schools to endorse such a message as the price of receiving funding is precisely requiring "a Government-mandated pledge or motto that the school must endorse," that pledge being "it is OK for recruiters on our campus to solicit only non-homosexuals for positions." The ruling thus runs afoul of the 2003 holding of United States v. American Library Assn., Inc.: "the government may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit."
There should be no "sauce for the goose" concern here. Holding for the law schools in this case would not vitiate the Grove City decision holding that "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept." For Congress to require law schools to endorse discrimination - as opposed to requiring Grove City College to provide sports opportunities for women per Title IX - is not a "reasonable" condition. Compelling law schools to say "our anti-discrimination policy be damned, we deem this discrimination to be OK" is to force speech upon them. It is entirely in the same category as the freedom not to display a politically objectionable state motto in Wooley. Specifically, it "forces an individual [law school] to be an instrument for fostering public adherence to an ideological point of view [it] finds unacceptable." Failing to recognize that imposition is what "trivializes" the right that had been recognized in Wooley.
In III.A.2 Roberts then rejects the argument that forcing a law school merely to host or accommodate an obnoxious message is a "compelled speech" violation. The leading case here, the application of which he rejects, is Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., which held that state law cannot require a St. Patrick's Day Parade to include a group whose message the parade's organizer does not wish to send. ("Parades are ... a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches.") Hosting recruitment, as opposed to hosting a parade, is not inherently expressive.
The problem here is that - unlike the situation in Hurley, in which there was nothing inherently heterosexual about the St. Patrick's Day parade - the law schools had a clear statement opposing discrimination on the basis of sexual orientation. Forcing the schools to host discriminating recruiters is incompatible with -- and, in fact, obviates -- that message. And that obviated message is an expressive one - indeed, one expressing a particular political viewpoint. Until today, that was the sort of speech that was supposed to be granted the highest protection.
Roberts answers this point by citing PruneYard Shopping Center v. Robins, in which the court found that a shopping center must allow certain expressive activities by others on its property because there was "little likelihood that the views of those engaging in the expressive activities would be identified with the owner, who remained free to disassociate himself from those views and who was not being compelled to affirm a belief in any governmentally prescribed position or view" (punctuation omitted). But here there is great likelihood that others will see law schools as endorsing the message that discrimination based on sexual orientation is OK when they direct students - but not all students - towards military recruiters. They are in fact endorsing the message that it's not worth losing federal funding over, because Congress has used its political muscle to leave them little choice. But would they make the same judgment if the proposed target of discrimination were Blacks, or women, or Jews? Perhaps not. And so, here, forcing accommodation is a means of forcing law schools to adopt a political position that this sort of discrimination is not as bad as other kinds. That is an unconstitutional condition.
The "unconstitutional conditions" doctrine suffered a serious blow today. It was a dark day for the First Amendment. I'm sorry that my fellow progressive lawyers don't recognize it as such.