Law schools across the United States got slapped down by the Supreme Court last Monday.
In a unanimous opinion, the Court ruled that the Solomon Amendment, which bars federal funding to any university refusing to allow military recruitment on campus, was fully constitutional. The law schools contended that the Solomon Amendment violated their First Amendment rights by forcing them to accept military recruitment; the law schools disapprove of military recruitment because they despise the "don't ask, don't tell" policy.
The Supreme Court rejected that contention. "In this case, [the law schools and their allies have] attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect," wrote Chief Justice Roberts for the Court.
The Court didn't rule on the simplest argument in favor of the Solomon Amendment: that attaching strings to federal funding (which is palatable) is not the same as forcing people to say what you want them to say (which is not).
The law schools are free to refuse federal money if they wish to bar military recruitment. And they are free to criticize the military's "don't ask, don't tell" policy and keep federal funding as long as they allow military recruitment. This has, in fact, been the preferred tactic of Harvard Law School since the passage of the Solomon Amendment.
Each year, the military recruits, and each year, Dean Elena Kagan sends out an e-mail to the Harvard Law community denouncing "don't ask, don't tell" as "deeply wrong -- both unwise and unjust."
Instead of stating that the Solomon Amendment was constitutional because there is a difference between attaching strings and forcing speech, the Supreme Court waded through a dense underbrush of First Amendment doctrine to reach its conclusion.
Bear with me as we explore that underbrush along with our guiding lights, the members of the illustrious Court. There is a point to all this -- I promise.
The Solomon Amendment was acceptable, the Court ruled, because forcing a law school to send out recruitment e-mails on behalf of the military (as it would for any other "nondiscriminatory" employer) is not like requiring students to say the pledge of allegiance (ruled unconstitutional in West Virginia Bd. of Ed. v. Barnette, 1943); nor is it like requiring drivers in New Hampshire to display the slogan "Live Free or Die" on their license plates (ruled unconstitutional in Wooley v. Maynard, 1977).
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