Bench Memos

This Day in Liberal Judicial Activism—November 29

2004—Objecting to governing law on homosexuals in the military, many law schools restricted the access of military recruiters to their students.  In response, Congress enacted the Solomon Amendment, which 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. 

In FAIR v. Rumsfeld, a divided panel of the Third Circuit rules that the Solomon Amendment violates First Amendment speech guarantees by “requir[ing] law schools to express a message that is incompatible with their educational objectives.”  According to the majority opinion of Judge Thomas Ambro, the message that law schools are supposedly being required to express is that discrimination on the basis of sexual orientation is permissible, and the means by which law schools are supposedly being required to express that message is by giving military recruiters the same access to students they give other recruiters.

On review, the Supreme Court unanimously reverses, in an opinion by Chief Justice Roberts.  Roberts makes short work of the Third Circuit’s reasoning.  The Solomon Amendment, he explains, “neither limits what law schools may say nor requires them to say anything.”  Rather, it “regulates conduct, not speech,” as it “affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.”  Because Congress could directly require that law schools provide access to military recruiters, it can impose the same requirement as a condition of government funding.

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