Constitutional Law
Mar. 15, 2006
Court Snubs Free Speech to Bow to Military
Forum Column - By Erwin Chemerinsky
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
From the first week of law school, I try to teach my students that a decision from the U.S. Supreme Court isn't necessarily right; that they, and everyone, should feel free to disagree with the court. This is so, even when the court is unanimous. I was reminded of this last week when the court, by an 8-0 margin, upheld the constitutionality of a federal law requiring law schools to allow military recruiters on campus. In Rumsfeld v. Forum for Academic and Institutional Rights, 2006 DJDAR 2648, the Supreme Court upheld the Solomon Amendment, 10 U.S.C. Section 983, which provides that if any part of an institution of higher learning denies military recruiters access equal to that provided other recruiters, the entire institution will lose federal funds.
The court's ruling means that law schools must give preferred status to the military. Any other employer that discriminated on the basis of race, gender, religion or sexual orientation would be excluded, but not the United States military. This undermines the freedom of speech and freedom of association of law schools across the country that do not wish to be a tool to further discrimination against some of their students.
Beginning in the 1970s, U.S. law schools began to adopt policies to exclude from school facilities employers who discriminate on the basis of race, gender or religion. In 1990, the American Association of Law Schools, the governing and accrediting body for law schools, voted unanimously to include sexual orientation among the types of prohibited discrimination.
As a result of such policies, many law schools barred the military from using their placement facilities. A federal statute excludes gays and lesbians from service in the military. 10 U.S.C. Section 654. Schools varied in the extent of their exclusion, but most law schools restricted the ability of military recruiters to use law school career services offices because of the military's express policy of discrimination based on sexual orientation. The military could interview students off-campus, or at campus ROTC offices, but not within law school facilities.
Law schools long have had policies denying use of their career services facilities to employers that discriminate. Few would deny that law schools have the right to exclude a private law firm that refuses to hire African-American or Jewish students. Likewise, a law school can, and should, refuse to open their facilities to employers that won't hire gay and lesbian students. Law schools, through such policies, are communicating an important message to their students and to the larger community: Discrimination is wrong.
No one disputes that the military discriminates on the basis of sexual orientation. A federal law expressly requires this. See 10 U.S.C. Section 654. Discrimination by the military is no more acceptable than discrimination by any other employer. In fact, discrimination by the United States government is worse because it communicates a clear message that sexual orientation discrimination is socially acceptable. This makes it all the more important that law schools express their disapproval of such discrimination by excluding military recruiters.
In response to the law schools' exclusion of the military, New York Congressman Gerald Solomon in 1994 proposed an amendment to the annual defense appropriations bill that would withhold Department of Defense funding from any educational institution that excluded the military from using school facilities for recruiting purposes. This proposal was adopted by both the House and Senate and signed into law.
In 2001, with the more conservative Bush administration in charge and following the events of Sept. 11, 2001, the Department of Defense informed law schools that they had to allow military recruiters access equal to all other employers or their universities would face the loss of all federal funds. In the summer of 2004, Congress codified this policy in a statute that provides that law schools and their universities face loss of federal funds unless military recruiters are given access "in a manner that is at least equal in quality and scope to the [degree of] access to campuses and to students that is provided to any other employer." Ronald Reagan Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 198-375, Section 552, 118 Stat. 1811, 1911 (2004), 10 U.S.C. Section 983(b).
A lawsuit challenging the Solomon Amendment was brought by an association of law schools and law faculty, the Forum for Academic and Institutional Rights. Plaintiffs also included two law professors: Sylvia Law, from New York University, and me. Additionally, three law students were named as plaintiffs in the suit. The U.S. 3rd Circuit Court of Appeals found the Solomon Amendment to be unconstitutional.
The Supreme Court unanimously reversed the 3rd Circuit and upheld the federal law. Chief Justice John G. Roberts Jr. wrote the opinion for the court and began by noting that universities could choose to give up federal funds in order to exclude the military. However, this is not realistic given the dependence of major universities on federal funds. Moreover, it is well established in constitutional law that the government cannot require that a person or entity give up its constitutional rights in order to receive a government benefit. See, e.g., FCC v. League of Women Voters, 468 U.S. 364 (1984) (Federal Communications Commission cannot condition federal funds to radio stations based on their editorial content); Speiser v. Randall, 357 U.S. 513 (1958) (state could not condition property tax exemption on individuals taking a loyalty oath).
The Solomon Amendment is exactly this type of "unconstitutional condition." First, compelling law schools to permit military recruiters to use career services offices violates the First Amendment in another way; it is impermissible compelled speech. The Supreme Court long has ruled that the government may not force individuals or entities to express a message with which they disagree. See., e.g., West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). In fact, the Supreme Court has been clear that government action that forces a private speaker to accommodate or include a message with which it disagrees violates the First Amendment. For example, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), the Supreme Court unanimously ruled that it violated the First Amendment to force the organizers of the St. Patrick's Day parade in Boston to allow participation by the Irish-American Gay, Lesbian and Bisexual Group. In Pacific Gas & Elec. Co. v. Public Utility Commission of Cal., 475 U.S. 1 (1986), the court held that a state agency cannot require a utility company to include a third-party newsletter in its billing envelope.
The Solomon Amendment literally compels speech in that the law school must post notices and announcements of the military's presence on campus, just as it does for other employers. The Supreme Court said that the First Amendment was not violated because law schools also could communicate their message of disagreement with the military's policy. But never before has the Supreme Court held that compelled speech is permissible just because the speaker can also express disagreement with the forced message. For example, the court did not say in Barnette that children could be made to salute the flag if they also then could say they objected; in Pacific Gas & Electric, the ability of utilities to include a statement objecting to the announcement required to be placed in billing envelopes did not make it constitutional.
Second, the Solomon Amendment impermissibly forces law schools to associate with the military in violation of their expressed anti-discrimination policy. The Supreme Court has held that a group that has a clear expressive message has a constitutional right to implement it, even by excluding others. The leading case, ironically, is Boy Scouts of America v. Dale, 530 U.S. 640 (2000). James Dale was a lifelong scout and scout leader. When the Boy Scouts learned that Dale was gay, they told him that he was no longer welcome to participate in scouting activities. Dale sued under a New Jersey statute that prohibited private groups from discriminating based on characteristics such as race, gender, religion and sexual orientation. The Supreme Court ruled in favor of the Boy Scouts holding that they had an expressive message that is anti-gay and the government may not force them to accept gay members in a manner that would be inconsistent with their message.
Under this reasoning, law schools are also engaged in expression when they promulgate anti-discrimination policies. Forcing law schools to allow military recruiters to use their facilities significantly undermines the ability of law schools to convey their viewpoint.
The Supreme Court rejected this argument and stated that Dale was different because it was forcing the Boy Scouts to accept members against their will. However, this is a distinction without a difference. Although the Solomon Amendment does not compel membership, it does compel association in a manner that is inconsistent with the expressive message of law schools. No more than this is required to violate the First Amendment.
Why, then, did the court unanimously abandon long-standing First Amendment principles? In part, the decision follows a long and disturbing pattern of judicial deference to the military, especially in wartime. In part, too, the decision reflects a lack of sensitivity to the law schools' compelling interest in not being a party to discrimination against their students. Someday, hopefully soon, the federal law excluding gays and lesbians from the military will be repealed. In the meantime, law schools and their faculty and students must look for new ways to express their disagreement with this profoundly misguided policy.
Erwin Chemerinsky is Alston & Bird Professor of Law and Political Science at Duke Law School. He is a plaintiff in Rumsfeld v. Forum for Academic and Institutional Rights, discussed in this article.
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