Today the Supreme Court of the United States, in the case of Rumsfeld v. FAIR unanimously (8-0, Justice Alito not participating), upheld the governments right to withhold funding from those colleges and universities which do not provide military recruiters with equal access to campus facilities and students as they provide to other prospective employers, agreeing with the arguments made by Atlantic Legal Foundation in its amicus brief filed in support of the government. The case involved a challenge to the constitutionality of the Solomon Amendment, which provides that certain federal funds may not be granted to universities that do not give military recruiters the same access to on-campus recruiting functions as the school provides to other employers.
The decision can be downloaded in PDF format here.
In July, 2005 Atlantic Legal filed an amicus brief in the Supreme Court on behalf of 29 high-ranking former senior U.S. military officers and Department of Defense officials, including former Secretaries of Defense James Schlesinger and William Perry and Generals Hugh Shelton and John Shalikashvili (both former Chairmen of the Joint Chiefs of Staff), two retired Commandants of the Marine Corps, and retired Superintendents of the U.S. Military Academy and the U.S. Air Force Academy.
Co-counseling with Greenberg Traurig LLP, we argued that the constitutionality of the Solomon Amendment should be upheld because on-campus recruiting is essential to our national defense, on-campus recruiting is necessary to maintain an all-volunteer military especially to recruit highly qualified specialists in many fields, including law and medicine – and that Congress, not the Judiciary, has the Constitutional responsibility for raising and supporting a military and has explicitly made the considered judgment that on-campus recruiting is vital to achieving that goal.
The Court agreed with much of Atlantic Legal’s reasoning. The Court held that Congress could require equal access by military recruiters directly, relying in part on Congress’ power to raise and support the military: "The Constitution grants Congress the power to ‘provide for the common defense,’ to ‘raise and support Armies,’ and to ‘provide and maintain a Navy.’ 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. . . ."
The Court explained that the Solomon Amendment principally regulates conduct, and that any alleged compelled speech is incidental. The Court also held that the conduct at issue (allowing military recruiters equal access to campus facilities) is not so inherently expressive that it is protected under the First Amendment (distinguishing the Courts flag burning cases). Moreover, students and faculty may associate to express their disapproval of the militarys message. The Court distinguished Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) and Boy Scouts of America v. Dale, 530 U.S. 640 (2000), pointing out that the law schools are not forced to accept "members" they do not want. Here, the Court said, the "association" is little more than interaction, and everyone understands the military recruiters are outsiders who come on campus for a limited purpose. Chief Justice John Roberts, writing for the unanimous Court, wrote: "A military recruiters mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiters message. . . . In this case, FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect."
The Court agreed with other arguments Atlantic Legal made, writing: "Military recruiting promotes the substantial Government interest in raising and supporting the Armed Forces an objective that would be achieved less effectively if the military were forced to recruit on less favorable terms than other employers . . . . The issue is not whether other means of raising an army and providing for a navy might be adequate . . . . That is a judgment for Congress, not the courts. It suffices that the means chosen by Congress add to the effectiveness of military recruitment. Accordingly, even if the Solomon Amendment were regarded as regulating expressive conduct, it would not violate the First Amendment. . . ."