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US Supreme Court unanimously upholds Solomon Amendment
March 06, 2006 by Ross Runkel at LawMemo
The United States Supreme Court held unanimously that the Solomon Amendment is constitutional. Rumsfeld v. Forum For Academic and Institutional Rights (US Supreme Court 03/06/2006).
(1) The Court held that the Solomon Amendment provides that in order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.
(2) The Court held that the Solomon Amendment is constitutional. Although there are limits to Congress' ability to place conditions on the receipt of federal funds, a funding condition cannot be unconstitutional if it could be imposed directly. This condition was one that Congress could have imposed directly without violating the 1st amendment.
The Solomon Amendment regulates conduct, not speech. (a) Although law schools must send emails and distribute fliers if they provide that service to other recruiters, these elements of speech are incidental to the statute's regulation of conduct, and cannot be compared to forcing students to pledge allegiance to the flag or forcing a Jehovah's Witness to display a motto on his license plate. (b) Schools are not "speaking" when they host interviews and receptions on campus. Nothing about recruiting suggests that law schools agree with the recruiters' speech. Law schools are not restricted as to what they can say about the military's policies. (c) This case is not like the flag burning cases because the conduct here is not so inherently expressive, and even if this were expressive conduct the Solomon Amendment would be constitutional under the flag burning cases.
The Solomon Amendment does not violate the law schools' freedom of expressive association. The statute does not require the schools to accept members it does not desire (distinguishing the case where a statute required the Boy Scouts to accept a homosexual scoutmaster). Recruiters are not part of the school. Students and faculty are free to voice their disapproval of the military's message.
Opinion by Chief Justice Roberts. Justice Alito did not participate.
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