home

Supeme Court Backs Military Recruiters on Campus

In a unanimous opinion written by Chief Justice John Roberts, the Supreme Court today upheld the "Solomon Amendment" and ruled that military recruiters must be allowed on campus. Scotus Blog has more details.

Upholding the so-called "Solomon Amendment," the Court ruled that the military must be given access to those campuses even though it violates the law schools' policy against facilitating discrimination against homosexuals. The military's "don't ask, don't tell" policy bars homosexuals who are publicly identified from serving in any of the services.

In a part of the decision rejecting a non-constitutional argument for avoiding the "Solomon Amendment," the Court declared that law schools could not exclude the military even if they also excluded all other potential employers that similarly declined to hire gays and lesbians. "Applying the same policy to all recruiters is insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that 'provided to any other employer.' "

The Court rejected the law schools' First Amendment challenge to the law.

The ruling rejected all of the law schools' First Amendment claims, including assertions than 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."

The case is Rumsfeld v. Forum for Academic and Institutional Rights. You can access the syllabus here; the Chief Justice's opinion here; and the oral argument transcript here. [Via How Appealing.]

< Despair and Confusion at Guantanamo | Amnesty Int'l: 14,000 Detained in Iraq >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


  • Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#1)
    by cpinva on Mon Mar 06, 2006 at 08:35:45 AM EST
    i'm not a lawyer, and i don't play one on tv. however, i can parse with the best of them. the key, to me, is the following:
    Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that 'provided to any other employer.' "
    this is the "out" clause in this opinion, though i expect the 9 learneds didn't think so at the time. if a law school, as they do now, bars access to any recruiter, representing any entity, public or private, who discriminates against anyone, they would have hurdled this bar, the justices say so. they would have provided "equal access", the "equality" based on their entity policies. in fact, by inserting that into their opinion, it would appear to have rendered the entire opinion moot. i suspect they have no clue the pandora's box they've unwittingly opened. what they actually meant was greater access by military recruiters, not equal access, they already have that. however, they specifically didn't say greater, they said
    at least equal to
    . it can be reasonably argued that, by requiring all recruiters to meet the same standards, to be allowed on campus, they have provided "equal access". i could be wrong, but i think this may be more of a commerce clause issue than a free speech one. of course, this may well explain why i'm not an attorney!

    CP, I think it's a good thing you're not an attorney, as your case here wouldn't get very far at all. The sentence above the one you cited, which reads ""Applying the same policy to all recruiters is insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military" makes it clear that your argument will fail. What the court is saying in the clause you cite is that military recruiters must have the same access as every other employer, which is the court's way of saying that the military must be granted the same access as the employer who enjoys the greatest level of access granted.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#3)
    by Dadler on Mon Mar 06, 2006 at 09:17:28 AM EST
    Considering the military just another "employer" strikes me as quite twisted, if not Orwellian. On the most simplistic level, you have the right to quit a job; you have the right to be convicted and imprisoned if you quit your military "job". The military is a tyrannical institution at heart, that's how it operates, in a mode counter to genuine freedom and democracy. When you are in the military you are a few hairs short of a slave. With some benefits, that can arguably not nearly measure up to what you are commanded to do by your "employer". Also, why should a volunteer military need to be recruited? Speaks volumes about how poorly the military establishment (as opposed to individual soldiers) and its civilian leadership have come to be so phenomenally distrusted. And the military, an "employer" with a long record of killing innocent people, mistreating its own soldiers, lying to their families, discriminating against homosexuals, suppressing dissent, etc., should be no more entitled to easy and equal access to school campuses than, say, a medical marijuana clinic would get. Which is little to none.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#4)
    by Dadler on Mon Mar 06, 2006 at 09:18:58 AM EST
    But, I should add, obviously the Roberts Court, gag, doesn't agree. And so the beat will go for a very long time.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#5)
    by roy on Mon Mar 06, 2006 at 09:31:43 AM EST
    As much as I dislike this law, I'm not surprised that it's Constitutional. Congress has the authority to draft people into the military, to force them to yield their specifically protected rights (i.e. Bill of Rights rights), and go get shot. That's the holy grail of authoritarian power. Forcing schools to host recruiters (as SCOTUS says Congress can) or making federal funds dependent on hosting recruiters (as Congress has actually done) is a lesser travesty under the same umbrella.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#6)
    by swingvote on Mon Mar 06, 2006 at 09:51:10 AM EST
    Interesting analogy, Dadler; by that reasoning, MLB, the NFL, the NBA, most, if not all, Fortune 500 companies, both major political parties, and even those same lawschools involved in this suit are all so badly managed and suffer from such low esteem that they are unworthy of anyone's free attention, for they all use recruiters themselves. I know that the left's overall attitude toward the military is one of general animosity, but it still surprises me that so many liberals oppose the idea of allowing alledgedly intelligent students to be informed about career opportunities in the military. Are we protecting these students, in the fear that they are too stupid to judge for themselves, or are we protecting the military from these students and their views? I would think that the average soon-to-be Harvard graduate is at least as capable of making an informed decision about whether they want to be a JAG lawyer as they are about being a Wall Street lawyer, and it seems to me that having more of these people join the military could only improve it. Yes, the military's policy on homosexuals is stupid, but we have Bill Clinton to thank for that when he failed to live up to his promises and take the Joint Chief's on. But which is more likely to influence the military to change it's policy?: Universities not allowing military recruiter's on campus, or students who were educated at those universities actively taking part in the military where the decisions are made?

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#7)
    by eric on Mon Mar 06, 2006 at 09:52:39 AM EST
    I am surprised the decision was unanimous. But I do think that the result was to be expected because we all know what this is really about: policies that prevent discrimination against gays simply do not get the same force as other non-discrimination laws or policies. Would the result have been different if the military discriminated against blacks? I think so. I doubt the Court would require that law schools let such discrimination happen on their campuses. One of the more disturbing results of this decision is that law schools will now have to sit back allow a flagrant violation of anti-discrimination laws in several states. In Minnesota, for example, it is a violation of the law to discriminate on the basis of sexual orientiation in hiring. Now, the University of Minnesota is put in the position of knowing that a recruiter, the military, if blatantly violating this law right on their campus. The Court doesn't think this violates the First Amendment, but nevertheless, it still stinks.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#8)
    by jimakaPPJ on Mon Mar 06, 2006 at 10:16:38 AM EST
    et al - I love it. One for the good guys.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#9)
    by jondee on Mon Mar 06, 2006 at 10:22:30 AM EST
    Keep hallucinating..Audie Murphy movies and Norman( or is it George Lincoln?) Rockwell.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#10)
    by Pete Guither on Mon Mar 06, 2006 at 11:21:47 AM EST
    I think the decision is constitutionally correct. What I don't like is the fact that schools now essentially have to tell their students: "OK, for all of these employers over here, every one of you can be considered, but for this particular employer - the military - there's a group of you that are excluded. You're not allowed to serve your country or be hired in this particular occupation." It's the military's policy that needs to change. And what is so sickening is that the military is desperate for new recruits, those in the service are being stretched to the breaking point and we don't have enough reserves to handle an attack from Lichtenstein. And yet, we exclude an entire segment of our population that wishes to serve. That is negligence in military management that borders on treason (except you'd have to lock up the entire government).

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#12)
    by Che's Lounge on Mon Mar 06, 2006 at 12:12:01 PM EST
    What a patriot: A woman was attending a military conference when she noticed a military commander in the lobby looking very uncomfortable. "What's the problem commander? You look upset," said the woman. The commander replied, "Sorry, but I haven't had sex since 1959, so I'm a bit on edge." Feeling at the same time both empathy and patriotism, the woman invited the commander to her room, where they had sex. When it was over, the woman remarked, "You sure didn't act like you haven't had sex since 1959." "Thank you very much", said the commander. "But I have to go. It's almost 2400."

    et al... Surprised military recruitment hasn't been blamed for the irrate muslim (there's a catchy phrase) who drove his rented jeep into a crowd at UNC in an attempt to kill the infidels? BTW TL... why no mention of this "crime" anywhere?

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#14)
    by Johnny on Mon Mar 06, 2006 at 01:01:42 PM EST
    So, does this mean they cannot tell them "no" at all? If I run a school, and tell ALL employers they are not welcome (not a wise choice, of course), does the military still get to recruit? If I run a school, private, whose express missions tatement was to promote peace through passive resistance, would I still be forced to allow the military to recruit? What, exactly, does this mean?

    Peter:
    It's the military's policy that needs to change. And what is so sickening is that the military is desperate for new recruits, those in the service are being stretched to the breaking point and we don't have enough reserves to handle an attack from Lichtenstein. And yet, we exclude an entire segment of our population that wishes to serve. That is negligence in military management that borders on treason (except you'd have to lock up the entire government).
    Correct me if I am wrong, but is the present policy made up by congress, not the military. The military marches to its tune.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#16)
    by Jlvngstn on Mon Mar 06, 2006 at 01:16:10 PM EST
    IRRATE - Definition: Common spelling by idiots of the word irate. I agree with Peter G although it seems to me that congress could make a change there. Seems that the democrats are pro-gay on some issues and pro-reelection on others.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#17)
    by roy on Mon Mar 06, 2006 at 01:20:16 PM EST
    Johnny, I'm not a lawyer, but I saw one on TV.
    So, does this mean they cannot tell them "no" at all?
    Almost. Current law allows them to say "no" if they choose not to accept federal funds. However, SCOTUS said Congress has the authority to make saying "no" illegal without tying it to federal funds. If Congress were to exercise that authority, schools would have no choice.
    If I run a school, and tell ALL employers they are not welcome (not a wise choice, of course), does the military still get to recruit?
    Such a school could refuse recruiters under current law, without disqualifying itself from federal funds.
    If I run a school, private, whose express missions tatement was to promote peace through passive resistance, would I still be forced to allow the military to recruit?
    Such a school would have to allow recruiters equal access or forfeit federal funds under current law.
    What, exactly, does this mean?
    In broad terms, it means private assets -- including property, time, and effort -- can be pressed into public service. That's not new. Both major parties love having that power, but hate the other side having it.

    I do think its a bad law, but I think it was very clearly a Constitutional law and am not at all surprised by the unanimous verdict. Congress controls the purse strings and they get to make demands in return for access to the federal budget. I have no difficulty thinking of countless instances where I think this power is used very well. The law is bad, but that doesn't mean it should be overturned by the courts. There just isn't a sound legal justification to overturn the law. A sound moral reason, certainly, but that's a different matter I'm afraid.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#19)
    by Dadler on Mon Mar 06, 2006 at 02:05:43 PM EST
    justpaul, I also should've added labor protections, which "employees" of the military don't get as soldiers. I'll repeat, in my mind, consdiering the military just another "employer" is a genuine denial of its purpose, role and administration. Now, if the military is allowed on high school campuses to distort and romanticize in an effort to find cannon-fodder, then MANY other legitimate businesses should be allowed as well. Sex industry reps, casinos, liquor companies, all should be allowed. They are certainly just as legitimate as employers as any branch of the military. And my animosity is reserved for those who RUN the military and the WAY it is used, or I should say abused. Oh, and I agree, Clinton was a sellout on the gays in the military issue. One of the reasons I had an uneasy feeling about his from the get-go. Not that he's worse than Bush, obviously, or his old man, but just that he could've been so much better.

    I slept through conlaw, so don't shout if this inane, but isn't the upshot of this holding that some progressive state could compel a Christian school (be it private or public) to accomodate, say, Lambda? It seemed to me that the case turned on the fact that the school's refusal to host the military couldn't be characterized as free speech. Accordingly, didn't SCOTUS just eliminate the only argument available to the hypothetical Christian law school objecting to a policy requiring access by gay groups?

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#21)
    by Pete Guither on Mon Mar 06, 2006 at 02:28:21 PM EST
    Note to all for clarification. I realize it's confusing, but I'm Pete Guither, and there's another poster who really knows his stuff named Peter G. I definitely do not speak for Peter G. Wile E. Yes, it is Congress' decision to change, but I consider it a Military policy, so that was just a difference in wording. Dark Avenger, when I said you'd have to lock up the entire government, I was referring to the lack of willingness to properly open up the military to all citizens by BOTH parties. jpe, I think this case would be significantly different than the one you suggest. In the case of military recruiters, Congress specifically passed a law requiring that military recruiters be accepted, and Congress has been given specific constitutional authority to raise and maintain armed forces. There's no way that a state law requiring Christian school to accept gay recruitment would have the same constitutional authority.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#22)
    by ras on Mon Mar 06, 2006 at 02:41:06 PM EST
    Aren't the military simply following the law re gays? In which case, those who wish to "punish" them by denying them access to campus are basically just shooting the messenger [and inadvertently, by demanding the military break selective laws, advocating that civilian control of the armed forces be foregone]

    The constitutional authority to raise a military was just icing on the cake, though; with or without that passage, the government wins inasmuch as there's no free speech interest implicated.

    Correct me if I am wrong, but is the present policy made up by congress, not the military. The military marches to its tune.
    OK, You're wrong. So, it's your contention that the military don't mind having Gays serve and would eagerly change their policies but Congress won't let them? That's almost as ridiculous as the nitwit who tried to blame it on Clinton. Best wishes, The Acme Anvil Company.

    Posted by ras March 6, 2006 03:41 PM
    Aren't the military simply following the law re gays?
    No. Not even close.

    Jlvnstn... IRRATE - Definition: Common spelling by idiots of the word irate. Sorry I hit the R twice in my hurried attempt to get this in between business calls. I apologize all to hell! Why is it all you "really bright" leftie people are so concerned with spelling? As I said to Che' on another blog... it would be nice to actually 'debate' and 'discuss' issues without the childish name calling, spelling corrections, and the ever so popular taking statements out of context and running off on some other political tangient you want to go down. Make sure you spell check this for me now... because that's more important to self absorbed 'know it alls' like you than what is actually said.

    charliedontsurf1:
    Aren't the military simply following the law re gays? No. Not even close.
    What law is the military breaking?
    OK, You're wrong. So, it's your contention that the military don't mind having Gays serve and would eagerly change their policies but Congress won't let them?
    If Congress changed the law would not us in the military have to change our practices?

    BB, don't sweat it. After all the title of this very thread is "Supeme Court Backs Military Recruiters on Campus."

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#29)
    by Jlvngstn on Mon Mar 06, 2006 at 05:12:04 PM EST
    BB when you bring any intelligent thought to any debate on this site I will leave you alone. The reality is that I have smarter pumpkins in my backyard. SUO - My guess is that you and BB would have about 5 minutes of friendship once you got past the politics. I cannot ever recall referring to you in a negative manner, yet politically we disagree on much. Most of your comments are thought out and flow in complete sentences. I do love the catch about supeme, although lingistuically speaking, TL does not suffer from idiocy in spelling. The difference between a "typo" and a general lack of vocabulary are demonstrable in the case of Burger Boy.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#30)
    by Che's Lounge on Mon Mar 06, 2006 at 06:39:46 PM EST
    As I said to Che' on another blog... it would be nice to actually 'debate' and 'discuss' issues without the childish name calling... Followed by... because that's more important to self absorbed 'know it alls' like you... Jlvngstn beat me to the logical response: BB when you bring any intelligent thought to any debate on this site I will leave you alone.

    Posted by JimakaPPJ March 6, 2006 11:16 AM et al - I love it. One for the good guys Jim pulls for the bigots. I'm so shocked. Who else gets to discriminate openly? Wouldn't that give them and unfair advantage? If not, why not?

    Posted by sarcastic unnamed one March 6, 2006 05:08 PM
    BB, don't sweat it. After all the title of this very thread is "Supeme Court Backs Military Recruiters on Campus."
    A careless error can be remedied. Illiteracy and ignorance of such magnitude is transcendent.

    Why is it all you "really bright" leftie people are so concerned with spelling?
    Fifth Grade has that effect on people.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#34)
    by BigTex on Mon Mar 06, 2006 at 08:41:52 PM EST
    Perhaps I'm overly dense tonight, but from the administration's viewpoint why does it matter if the recruiters are allowed on campus? This is an all volunteer army. If student's don't want to talk to the recruiting officers, they don't have to. If students talk to recruiting officers and decide not to enlist, they don't have to. If student's decide to enlist then it counts as a placed by graduation statistic in the school's CRC file, and helps the school look like it is successful in getting student's employed at graduation. If this were a case where students had to meet with the recruiters then that would be a different story. But as it stands right now, all the school has to do is allow access to campus. That does the school no harm.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#35)
    by Pete Guither on Mon Mar 06, 2006 at 09:46:54 PM EST
    Big Tex, For many of the schools it's a matter of principle. They have set up a rule that any employers who come on campus cannot discriminate. So if there are any employers who will not hire gays, or some other group, they aren't allowed to recruit, under the view that employment opportunities should be open to all their students. The schools can still have this rule, but they have to allow the military, which discriminates. as the one exception to the rule.

    Pete: If it is really a matter of principle to the schools, then the schools could refuse the gov't money and keep the recruiters off campus.

    What garbage! They've got to heat the place like everybody else. That's just standard bogus bush league bigot blather. It's not a choice they should even have to make. A better question is why should the military get to violate the law with impunity and still receive Federal Funding. No one else is afforded that luxury. That's an unfair competitive advantage. Vermont Law School says they're gonna stick to their guns and refuse the funds. Too bad. A better idea is to organize counter-demonstrations when the military comes to campus. Free speech is free speech.

    "For many of the schools it's a matter of principle. They have set up a rule that any employers who come on campus cannot discriminate." Then they can refuse federal funds. This is actually a very simple matter, and has nothing to do with free speech. If you take funding from someone and don't expect there to be strings attached, you're completely naive. As to the comment above about "needing to pay the bills" - well, if a school is so badly run that they need federal funds to stay afloat, then they have a serious problem with their business model.

    I wonder if it's possible to get a list of the people these schools have themselves recruited over the last 10 years to see just what kind of people they want on campus and what groups those people have been involved with. There are plenty of groups out there which discriminate in one form or another when it comes to membership requirements, and chances are many of these schools have recruited people from those groups. Yale, for one, has recruited a former, and apparently unrepentant, member of the Taliban as a student, even though the Taliban had a much more harsh policy regarding homosexuals than does the military. Would this draw the "it's a matter of principle" argument into question?

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#40)
    by Jlvngstn on Tue Mar 07, 2006 at 09:37:45 AM EST
    Wile/JR: I agree to a certain extent although doesn't it go against the grain of preventing discrimination and with the strings attached the gov't becomes complicit in advancing discrimination? Big Tex, what part of our workforce is "non-voluntary"? Are there mandatory jobs out there i am unaware of?

    The Congress has the power to raise military troops in any way it sees fit, including a draft. Given that it has the power to coerce people into service, it seems fairly silly to argue that it can't send recruiters to a campus - which was the basis of Robert's main argument, it seemed to me. Ultimately, who is and is not allowed to serve is not up to the military - it's up to Congress. If you want to have this fight, be smart enough to have it in the proper arena.

    Jl, raking someone over the coals for spelling and/or grammar mistakes on a blog bothers me - even though I also have gotten frustrated and have been guilty of doing the very same thing to others this blog (and, afterwards, regretted doing it). I have no particular kinship with BB. I own a biz, as do you, therefore my time available to blather on TL is scarce. As a result, there are many commenters whose comments I usually don't have time to read and typically just skip over, unless someone of substance, like you, responds to them - as was the case here. The irony of this one tickled me which is why I responded at all, although I must admit my appreciation was somewhat tempered because you were involved.

    Jlvngstn... The reality is that I have smarter pumpkins in my backyard. LOL...I rest my case! Once again you show how 'intelligent' you are by your childish behavior... And this gem.... and a general lack of vocabulary are demonstrable in the case of Burger Boy. How would you know? You're too busy getting a snicker out of your pals here on TL. I'll debate you any time on any subject, and I won't have to stoop to calling you names! Charlie.... A careless error can be remedied. Illiteracy and ignorance of such magnitude is transcendent. TL leaves a letter out...I add an extra... One is ok & one isn't. Typical liberal double standard... why would I expect any less? Oh the humanity.... oh the 'magnitude'! LMAO

    Well, the military could finally break down and admit that gay people can fight, too. (Weren't the Greeks pretty successful in their day?)

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#45)
    by Jlvngstn on Tue Mar 07, 2006 at 02:27:59 PM EST
    Fair enough SUO, just thought it strange you were aligning with him as his arguments are elementary at best and usually devoid of any intelligent matter. I skip over a lot myself and take both sides on issues as I have seen you and Pigwiggle do. In real life when someone makes a moronic statement, I let it go for the first few times. After the allotted 3-5 idiot statements, I have no issue in telling someone that I believe they are an idiot. I don't think Dick Cheney is an idiot I just disagree with his long term strategies. I should use more restraint but he is a troll and brings nothing to the arguments and I do feel some internal obligation to call it out.

    Re: Supeme Court Backs Military Recruiters on Camp (none / 0) (#46)
    by Jlvngstn on Tue Mar 07, 2006 at 03:00:01 PM EST
    Also, I have a great appreciation and respect for you SUO and I take your criticism to heart.

    Thanks for the props Jl, and right back at you. There are a few posters that make reading TL worthwhile and you are one of them.

    Posted by James Robertson March 7, 2006 10:16 AM "For many of the schools it's a matter of principle. They have set up a rule that any employers who come on campus cannot discriminate."
    Then they can refuse federal funds. This is actually a very simple matter, and has nothing to do with free speech. If you take funding from someone and don't expect there to be strings attached, you're completely naive. As to the comment above about "needing to pay the bills" - well, if a school is so badly run that they need federal funds to stay afloat, then they have a serious problem with their business model.
    Well, aren't you the pusillanimous putz. Feel free to Google us up all the schools that forgo Federal Funds in this day and age and what percentage they comprise of schools overall. I expect the spineless from you shrub shills but you may have plumbed new depths with that one.