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Rejecting the views of some of the nation’s top law schools and professors, the Supreme Court on Monday upheld the so-called Solomon Amendment, which requires universities receiving federal funds to give equal access to military recruiters on campus. The unanimous decision was a sharp rebuke of the legal academe, many of whose members objected on First Amendment grounds to hosting military recruiters, because of the armed forces’ policies against allowing open homosexuals in their ranks. Writing for the 8-0 Court, Chief Justice John Roberts Jr. said the academics’ arguments “trivialize” some of the Court’s First Amendment precedents while “exaggerating” others. Justice Samuel Alito Jr. did not participate in the ruling. “This decision will force our schools to carve out an exception to our nondiscrimination policies for the military, and that is unfortunate,” said Carl Monk, executive director of the Association of American Law Schools (AALS), which has opposed discrimination in legal education on the basis of sex since 1970. But he said law schools will obey what is now “the law of the land.” Monk expressed the hope that “the day is not far off when gays and lesbians will be able to serve as military lawyers.” The challenge to the Solomon Amendment was brought by the Forum for Academic and Institutional Rights, which includes the law school faculties of Stanford, Georgetown, George Washington, New York, and other universities. The AALS also joined the challenge, but not as a lead plaintiff. Georgetown law professor Mark Tushnet, a former president of the AALS, predicted that the ruling would lead to an increase in “the number and intensity of protests against military recruiting in the fall.” Roberts wrote that the law, first passed by Congress in 1994, bears no resemblance to the compelled speech the Court has struck down in other cases, such as West Virginia Board of Education v. Barnette and Wooley v. Maynard, which said states could not require students to recite the Pledge of Allegiance or force drivers to display a state motto on their license plates. “There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse,” wrote Roberts. Law schools argued that to give military recruiters equal access, they would be forced to distribute fliers or send e-mails to students that would convey an unwanted government message, but Roberts said those actions are “plainly incidental.” The ruling came as little surprise after oral arguments last December when justices showed little sympathy for the law schools’ argument, especially after Solicitor General Paul Clement said law schools were free to show their disapproval of military recruiters in a variety of ways, including organizing student protests against them. Referring to Clement’s statement at oral arguments, Roberts wrote, “The Solomon Amendment neither limits what law schools may say nor requires them to say anything.” Roberts added, “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.” Roberts also rejected an argument made by former acting Solicitor General Walter Dellinger III on behalf of a group of Harvard Law School professors that includes Dean Elena Kagan (in her capacity as a professor), Laurence Tribe, Lani Guinier, Randall Kennedy, and Robert Clark (a former dean). They argued that by giving military recruiters disfavored treatment, Harvard and other law schools were, in fact, abiding by the Solomon Amendment because they would treat any other employer who violated their nondiscrimination policies in the same disfavored way. But Roberts, a Harvard Law School alumnus, rejected the argument, asserting that the federal law looks to the actual access military recruiters are given, not to the policy that leads to that access. “It is insufficient for a law school to treat the military as it treats all other employers who violate its nondiscrimination policy,” Roberts wrote. “Under the statute, military recruiters must be given the same access as recruiters who comply with the policy.” The law was also attacked as an unconstitutional condition on federal funding, but the Court rejected that argument, too. Roberts said that because Congress has “broad authority” in the area of military recruiting, it could have imposed the access requirement on universities directly, rather than making it a condition of federal funding. “Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds,” Roberts wrote. The ruling was Roberts’ third majority opinion, and all have been without dissents or separate concurrences. Some critics of the military-recruiting decision took solace in that fact Monday, suggesting it means that the Court was not announcing a sweeping new doctrine. “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.”
Tony Mauro can be contacted at [email protected].

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