Rumsfeld v. FAIR

The US Supreme Court has upheld the Solomon Amendment requiring universities who accept federal funding to permit the military recruiters to have the same access to students as other employers. The decison was 8-0, with Justice Alito not participating.

The Solomon Amendment had been challenged by a bunch of law professors who want their schools to be able to ban military recruiters because of the military's "don't ask; don't tell" policy towards homosexuality. They argued that the Amendment imposed an unconstitutuional condition, requiring them to choose between federal funding and being compelled to either convey a message of approval of the military's policy or have their own message of nondiscrimination diminished.

That the decision was unanimous reflects the weakness of this argument. No one reasonably believes that law schools who permit recruiters on campus are endorsing everything about them. In fact, the point of excluding them had nothing to do with speech and everything to do with using the schools' control over access to law students to pressure the military to change its policy.

You can argue that excluding military recruiters is sort of like speech. It is, to some extent, "expressive conduct." But the lawprofs' argument would, if accepted, prove too much. It would permit a first amendment defense of, to use an unlikely example, refusing to hire African-Americans because it reinforces a message of white superiority.

Like last week's decision on the Hobbs Act and abortion protesters, this could be seen as a "conservative" decision by a Court moving to the right, but I think it was too easy to tell us much.