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Roberts' remarkable feat in military-recruiters case

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — It is rare for the Supreme Court to resolve a major First Amendment issue without one justice or another dissenting or writing a separate concurrence.

How, then, did the Court achieve caveat-free unanimity yesterday in Rumsfeld v. Forum for Academic and Institutional Rights? After all, the decision touched several First Amendment bases on its way toward upholding the federal law that requires universities receiving government money to give equal access to military recruiters. Law schools had challenged the law as a form of compelled speech or association that required them to lend aid and comfort to the military’s policy against openly gay service members.

It may have taken some doing for the Court to reach unanimity, given that it took three months for the decision to emerge, somewhat longer than usual for an opinion with no dissents or separate writings.

But Chief Justice John Roberts managed to pull it off, by a combination of narrow writing and assertions that the First Amendment did not apply in certain areas. The net result is that the ruling does not appear to have changed the Court’s First Amendment principles in any significant way that might have attracted dissents or concurrences. It even gave solace to organizations that opposed the law, known as the Solomon Amendment.

“The unanimity of today’s decision strongly suggests that the Court did not think it was changing any existing constitutional rules,” said Steve Shapiro, legal director of the American Civil Liberties Union. “Certainly, nothing in today’s decision endorses the military’s ‘Don’t ask, don’t tell’ policy or any other form of discrimination against gay people.”

One key to unanimity may have been Roberts’ reassurances that enforcing the Solomon Amendment would not keep law schools from making their objections to the military’s policies well known — even to the point of staging protests near the recruiting rooms. Roberts quoted Solicitor General Paul Clement’s surprisingly broad acknowledgment during oral argument in December that universities “could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests” and still not violate the Solomon Amendment.

Based on that statement, Roberts wrote, “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. ... 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.

That kind of speech-celebrating sentiment, coupled with the formulation that the law at issue does not even regulate speech in the first place, may have been enough to draw in the likes of Justices David Souter and Stephen Breyer. During the arguments, Souter expressed concern about limitations on law schools’ speech rights, while Breyer on the other hand seemed to think that the law would in general promote more speech on campus — both by the military recruiters and those who object to the military.

In other parts of the ruling, Roberts listed other First Amendment doctrines that did not apply to the dispute at hand. The kinds of things law schools were required to do to comply with the law — such as alerting students about the time and place recruiters would be on campus — did not amount to coercing the universities to “speak the government’s message." Those speech-like activities are “plainly incidental” to the Solomon Amendment’s regulation of conduct, Roberts wrote.

As a result, he said the speech at issue is “a far cry” from, for example, laws compelling students to recite the Pledge of Allegiance, struck down in the landmark ruling West Virginia Board of Education v. Barnette.

Roberts also left untouched another line of cases involving government requirements that force one group to accommodate the unwanted message of another group — such as requiring a St. Patrick’s Day parade to include gay rights groups (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston) or requiring a newspaper to give aggrieved readers a right to reply (Miami Herald Publishing Co. v. Tornillo). In those cases, Roberts wrote, the unwanted message actually interfered with the speaker’s desired message.

But here, he said, “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.”

He also shrugged off the notion that students would get the impression that by hosting military recruiters, the law schools agreed with the military’s anti-gay policies. Noting that in other contexts, the Court has said that even high school students can distinguish between “speech a school sponsors and speech the school permits because legally required to do so,” Roberts added with a touch of sarcasm, “Surely students have not lost that ability by the time they get to law school.”

Roberts also said the law did not violate the schools’ right to “expressive association,” and did not amount to an “unconstitutional condition” on the granting of federal funds.

The Court in the past has said the government may, through its spending authority, require funding recipients to do or not do certain things — but it may not place conditions on recipients that force them to surrender or violate their constitutional rights.

The law schools argued that in fact the Solomon Amendment was an unconstitutional condition. But the Bush Administration rejected that claim, comparing the law to others like Title IX, which requires all educational institutions receiving federal funds not to discriminate on the basis of sex in their offerings such as athletics. That law had once been challenged as a violation of a university’s associational rights.

Several women’s groups and civil rights organizations filed briefs with the high court urging it to leave Title IX and other laws like it alone, no matter how it ruled on the Solomon Amendment.

If Roberts had written an opinion that jeopardized Title IX in any way, he might have lost the vote of Justice Ruth Bader Ginsburg and others. But he steered clear of that quagmire. Instead, Roberts argued that the Solomon Amendment’s requirements would have been constitutional even if they had been imposed directly on universities — which means, under past rulings, that imposing the requirements indirectly as a condition on funding, was also constitutional.

By navigating through the shoals of several tricky First Amendment doctrines, Roberts was able to keep a unanimous court together — as he has in his two prior rulings since joining the Court in late September. Already, that is a rare feat.


Excerpts from Supreme Court arguments on military recruiters

Partial transcript of questions, remarks by U.S. Supreme Court justices, attorneys in Rumsfeld v. Forum for Academic and Institutional Rights. 12.07.05

Justices uphold campus military-recruiting law
Court rules 8-0 that colleges accepting federal money must allow such visits despite schools' objections to Pentagon's policy on gays. 03.06.06

Excerpts from, reaction to Rumsfeld v. FAIR
Quotes from and about Supreme Court's 8-0 decision. 03.07.06

2nd Circuit: Military-recruiting law doesn't violate academic freedom
Yale Law School, which objects to Pentagon's 'don't ask, don't tell' policy, says it will end ban on military recruiters after losing case. 09.20.07

6 First Amendment cases on fall docket
By Tony Mauro Topics involve campus military recruiting, hallucinogenic tea, public-employee speech, abortion protests. 09.26.05

Rumsfeld v. FAIR: What does it mean?
Online exchange by law professor Dale Carpenter, First Amendment lawyer Robert Corn-Revere about military-recruiters case. 03.09.06

First Amendment eludes spotlight this term
By Tony Mauro When issue took center stage, court-watchers found rulings ‘a mixed bag.’ 07.06.06

2005-06 Supreme Court case tracker

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