Solomon Amendment held constitutional

March 7, 2006 7:59 AM

The Solomon Amendment is constitutional. The 8-0 holding in Rumsfeld v. FAIR (PDF), contrary to much of the media coverage, does not force law schools to allow the military to recruit, it merely ensures that they will not receive federal funds if they do not (text of the U.S. Code affected by the Solomon Amendment). A distinction without a difference? The ACLU is not happy with the outcome; "Protest & Amelioration" have been demanded. More inside.
posted by rkent (78 comments total)

The Supreme Court's opinion this week actually overturned the 3rd Circuit's (PDF) ruling on the subject, where FAIR ("Forum for Academic and Institutional Rights"), in a triumph of legal jiu jitsu, won on the strength of Boy Scouts of America v. Dale. The Court in Dale held that the Boy Scouts' right to free association required that they be allowed to ban homosexuals; the 3rd Circuit in Fair v. Rumsfeld analogized this to the law schools' right to associate only with recruiters whose recruiting policies they favored.

Justice Roberts didn't buy this argument, concluding that the law schools aren't being forced to "associate" with recruiters in the same sense that the Boy Scouts would have been if they had to admit homosexuals (Slip Op. at 19). Neither did any of the other justices, apparently, since the case was decided without dissent (it was only 8-0 because Alito, who didn't hear the oral arguments, didn't participate in the decision). Is it really this cut and dried? Some law professors who got spanked in the opinion still don't think so.
posted by rkent at 8:00 AM on March 7, 2006

Legislation via extortion.
posted by furiousxgeorge at 8:01 AM on March 7, 2006

Spoiled socialist types always WANTITWANTITWANTIT without any need to produce anything for it.
posted by HTuttle at 8:06 AM on March 7, 2006

Wow, the US government both state and federal really needs to get over its hangups with homosexuals. The University's main complaint is that they don't like the "dont ask, dont tell" policy. Then claim, just as the boy scouts do, they have a right of free association. So SCOTUS pretty much tells them to fuck off without affecting the decision with the Boy Scouts. This ruling wouldn't be so bad if it was consistent with the Boy Scouts and other groups who get a free pass with discrimination. Sure this is over-simplfying the wonderful sophistry that passes for law, but some consistancy would be nice and its funny when inconsistancies reflect that status quo. That's no coincidence. Strict constructionalists my ass.

When gay marriate/civil unions hit the SCOTUS level I think its going to be pretty obvious how they rule.
posted by skallas at 8:10 AM on March 7, 2006

Umm, they're producing scientific research with those government grants, HTuttle, you moron.
posted by Saucy Intruder at 8:13 AM on March 7, 2006

Seems fair to me - recruiters aren't press gangs, students should be able to evaluate for themselves what they want out of life, and schools need the money. If the schools decide that the money is is more important than taking a stand on gender issues - well, then they've decided what their priority is in the great scheme of things.

If they figure the support is there from the alumni to pay the difference, then they can reject the recruiters and hit up the alumni associations to make up the shortfall.
posted by JB71 at 8:13 AM on March 7, 2006

Skallas nailed it.
posted by baphomet at 8:15 AM on March 7, 2006

JB71- We're talking about tens, hundreds of millions of dollars for each of these schools. Get real. Not a single college in the country is going to be able to afford to pass on that. That's like saying, "Well, we're not forcing you to eat babies, but there's not much other food out there and if you don't want to eat them you can just starve."
posted by baphomet at 8:18 AM on March 7, 2006

well, then they've decided what their priority is in the great scheme of things.

So now its the school's fault? I don't think many schools can even begin to function let alone compete without federal monies. I believe this would also include student's abilities to be able to draw grants and subsidized loans for that school. I remember Barney Frank trying to guy what monies this would affect way back when, but its still significant. There is no line to draw, without the federal loan/grant system there is no higher education. This isn't Europe.

I don't think anyone is claiming recruiters are press gangs. Universities want the power to say "Okay on this property we will not allow hate speech, discrimination, etc." The military gets an exception, no one else does. There's no Solomon Amendment for the Klan, for instance.
posted by skallas at 8:18 AM on March 7, 2006

Not only that, but the SCOTUS actually found that the government could constitutionally force schools to allow recruiters on campus if they wanted too, and that tying federal funding to allowing recruitment was just one form of that.
posted by delmoi at 8:19 AM on March 7, 2006

trying to gut what monies
posted by skallas at 8:19 AM on March 7, 2006

So SCOTUS pretty much tells them to fuck off without affecting the decision with the Boy Scouts.

Did you actually read the decision? The Boy Scouts don't have a constitutionally guaranteed right to raise an army, and the federal government does. The government has the constitutional right to force schools to allow recruiters on campus; iin fact, it even has the constitutional right to just straight-up draft students. (So it can act like a press-gang if it wants too)
posted by delmoi at 8:22 AM on March 7, 2006

Their decision is fine by me. Why?

Because I would vote to refuse school funding in my state and take on an increased school tax to pay for it instead. In one aspect, I actually agree with HTuttle in one aspect, in that we've treated the federal government as a free piggy bank, heedless of where the money comes from or what strings are attached to it. It isn't just about recruiting - the federal government is using funding policies in several to force states to give up some of their rights in return for the funding they're ostensibly supposed to get, based on population.

It's going to take a state government to stand up and say, "Keep the money, it's not worth it." I'd sooner pay more out of my own pocket, and gladly so, to ensure that my state isn't blackmailed.
posted by FormlessOne at 8:23 AM on March 7, 2006

The opinion is extremely well reasoned and legally accurate. The Court addressed the competing issues at play and rightfully did not overextend itself to issues not properly before it on appeal. Would it be to much to ask that the discussion of it in this thread be informed by a reading and understanding of the opinion?

I would also note that this is another unanimous decision by the Roberts court. I think that says something. Roberts appears to be doing an excellent job so far as Chief Justice. It is clearly much to early to tell, but he seems to be doing a great job of keeping the issues focused and not permitting the fractured opinions that became almost comical under the Rehnquist court.
posted by dios at 8:25 AM on March 7, 2006

I visualize some thousands of law students rushing to join up now! This is an old story: if the govt gives you money, then they call the tune unless you refuse to take it...most cities, schools etc capitulate. In part, this is why the govt collects our taxes and then sends it out again as it sees fit.

But there is good news! Gioven the way things xseem to be going, the military will offer job opportunities when the private sector does not: clothing, housing, food, health care, retirnement pensions! Similar to North Korea: you want to eat, join the army.
posted by Postroad at 8:29 AM on March 7, 2006

I would also note that this is another unanimous decision by the Roberts court. I think that says something. Roberts appears to be doing an excellent job so far as Chief Justice. It is clearly much to early to tell, but he seems to be doing a great job of keeping the issues focused and not permitting the fractured opinions that became almost comical under the Rehnquist court.

Keep dreaming dios. The only thing the recent unanimous decisions show is that Roberts is at least a mildly competent administrator who is clearing the docket of low-hanging fruit. The SCOTUS was badly in need of that.
posted by three blind mice at 8:30 AM on March 7, 2006

A libertarian might say that this is pretty much what you can expect once you begin accepting income streams through a control system like the feds. Once such a resource is tapped, it is soon indisposable. Once it is indisposable, the control system has leverage to impose their agenda on you. (Please note that this has nothing to do with the correctness of the decision; it is a general principle.)

Of course, once one or two competitors start partaking in the collective funds, your organization may not have many options other than to buy in or be crowded out.

Which is the reason why such the gov. shouldn't have this kind of tax-n-spend power in the first place, but here we are.

It's sort of like the separation between church and state: it actually protects churches in the long run. Just don't give up control to a larger entity for short-term gains.

I mean, if it weren't this, it'd be something else. How come anyone expects the gov. to not tie funding to their agenda?
posted by sonofsamiam at 8:31 AM on March 7, 2006

HTuttle: Spoiled socialist types always WANTITWANTITWANTIT without any need to produce anything for it.

Funny, I don't recall seeing many socialist types in the law schools of America. Opposition to military recruiting is not socialist, but then you are obviously ignorant. As for what is "produced" by the government investment in education, if you think it's nothing, get off the internet, throw away your computer, and don't go asking your doctor for any help next time you get sick. And all that money wasted educating the millions of average Americans who can't afford the tuition themselves, what a freaking waste. They'd be far more productive working in a call center than being lawyers or doctors. Hell, recruit away. Let's send every young person in America to Iraq. God knows we can use more kids over there, and fewer in college or grad school.

But never mind. It turns out that the NYC grad student who was raped and murdered may have been the victim of a mean-looking black dude. Drop everything else, please. We have to talk about this for the next two weeks with no distractions, but don't worry. The racial angle will remain in the subtext.
posted by fourcheesemac at 8:32 AM on March 7, 2006

delmoi, if they want a draft, they're welcome to institute one. They won't, however. The Congresscritters realize it's career suicide, and so they're trying everything they can to avoid it.

That includes turning high schools into recruitment centers, approaching underage kids and grooming them so that once they're of age, they can be signed up.
posted by FormlessOne at 8:32 AM on March 7, 2006

The Boy Scouts don't have a constitutionally guaranteed right to raise an army, and the federal government does.

Yet they both do get to discriminate openly. Why do the boy scouts get the power to discriminate and universties don't? Can universities even have a no gay policy? Ironically, I would think the federal courts would smack them down for it ASAP.

I would also note that this is another unanimous decision by the Roberts court.

Funny how that works. When everyone leans a certain way the boat doesn't rock, it just tilts.
posted by skallas at 8:33 AM on March 7, 2006

Good decision. Protest the military all you like, but WTF shouldn't they be allowed to be there.

By the way, this was a big issue back in the mid-1980's when I was in college at Boston University. It was one of the seminal evens for my political awakening; for leaving the immature "liberals" behind. I'm surprised the Solomon Amendment is still being controvered in this way.
posted by ParisParamus at 8:33 AM on March 7, 2006

(Did you know the army tries to recruit kindergarteners? My 5-yr-old brought home a bumper sticker, a keychain, and a pencil, all with the "Army of One" stuff all over it. Indoctrinate them early!)
posted by cass at 8:34 AM on March 7, 2006

> Strict constructionalists my ass.

As dios says, read the decision. Your ass is not relevant, so just put it away.


> A libertarian might say that this is pretty much what you can expect once you
> begin accepting income streams through a control system like the feds.

Once you accept federal funds you become a wholly-owned subsidiary of the federal government. In other words, p0wn3d by Bush. Worth it? Your call.
posted by jfuller at 8:35 AM on March 7, 2006

I agree with Dios-- while I may disagree with the military's "don't ask, don't tell" policiy, the Supreme Court was not deciding on that. The Supreme Court decided correctly. If you have a complaint, it is with Congress, not the Court.
posted by justkevin at 8:36 AM on March 7, 2006

As far the libertarian angle to this, the decision claims that the government need not even bother with funding tricks, its right to amass an army now extends to recruitment placement anywhere it wants. So the power is there. Solomon is just the bill that takes the money.
posted by skallas at 8:36 AM on March 7, 2006

we've treated the federal government as a free piggy bank
-------------------
It is our piggy bank, paid for with our taxes. We're being cut out of the product that we pay for. 'Oh yes, you can fund this government with your taxes, pretty and precocious that it is, just don't expect to participate in running or influencing it.

It is also important to remember that these recruiters are preying on students like never before with unsolicited phone calls almost constantly, enough questionable practices used to influence a potential recruit that some in California were removed from their positions because of their duplicity (not the first, but some of several).

The bottom line is that a majority of persons decided, consisting of parents, students, college personnel that they do not want their lives coerced or otherwise influenced by the probability that they will have to sacrifice getting a proper education to fight a war that was started on lies and continues to be waged on lies, including the deceitful, highly questionable decision made by the deeply conservative and unrepresentative current Supreme Court.
As far as I am concerned, they can make decisions all day long, I really doubt the majority of americans out there believe they are valid even if they are forced, not obligated, to abide by them.
posted by mk1gti at 8:37 AM on March 7, 2006

I will say this--although I am sympathetic to the plight of gays in the military, and think the ban should be lifted, I am troubled by the spate of First Amendment cases where people think the Amendment should protect them from the consequences of their speech.
posted by Ironmouth at 8:38 AM on March 7, 2006

Once you accept federal funds you become a wholly-owned subsidiary of the federal government. In other words, p0wn3d by Bush.

No, you just have to provide the government the same access as you would anyone else. If you don't like that, don't take the money.
posted by Brian James at 8:39 AM on March 7, 2006

As one of my high school teachers put it, so many years ago..."With Federal money, comes Federal control."
posted by Malor at 8:41 AM on March 7, 2006

Last time I looked at the federal budget and my tax returns, it was the Pentagon treating my meagre income like a free piggy bank. Or did I check MORE MONEY FOR BOMBS AND TORTURE on some form I forget?
posted by digaman at 8:45 AM on March 7, 2006

I have too also Agree with Dios on this, and I am a liberal leaning toward a Ghandi-esque socialist world view. The decision was narrow and a true reading of the statute. Flawed as it is. this is for the Dems to fix when in the majority again (if ever). That Being said I would love to see the military out of the scholl yards.

Universities don't bother me, High schools do. ONLY recruit adults!
posted by Elim at 8:45 AM on March 7, 2006

I am troubled by the spate of First Amendment cases where people think the Amendment should protect them from the consequences of their speech.

Then start your reform campaign by targeting regulations like "Don't ask, don't tell."
posted by digaman at 8:46 AM on March 7, 2006

Not a single college in the country is going to be able to afford to pass on that.

NYU did, and gave up $75,000 in funding for its law school. The problem is that now the government would remove support from the entire university, not just from the law school. For NYU, $75,000 is nothing; it's literally less than one undergrad student's tuition for two years -- but missing $130 million from all NYU's schools? Especially since a lot of that goes to research, the med school, and so on?
posted by booksandlibretti at 8:49 AM on March 7, 2006

As for Dios, I don't know what "legally accurate" is. If I had a dollar for everytime I got shot down by a court even though my statement of the law was the correct one, then I'd retire.
posted by Ironmouth at 8:50 AM on March 7, 2006

digaman--I agree--Don't Ask, Don't Tell should go now, and I've only supported candidates who oppose it and favor equality in the military. Of course, where I live, I don't get a vote.
posted by Ironmouth at 8:51 AM on March 7, 2006

He who pays the piper calls the tune.
posted by ZenMasterThis at 8:52 AM on March 7, 2006

I used "legally accurate" (probably not the most descriptive term I could have applied) to mean that it was a proper use of the judicial function: the Court narrowly looked at the issue before it, narrowly ruled on the issue by following precedent, properly deferred to the legislature to the extent it didn't violate an explicit constitutional principle. There wasn't any policy arguments. There wasn't any attempt at distinguishing and creating a legal issue which was not before the Court. It simply took a measured approach to the issue before the Court, and ruled on in it an uncontroversial manner by applying existing precedent.

This kind of behavior is distinct from the wide ranging legal inquiries that occurred under the Rehnquist Court that produced fractured opinions with Justices all focusing on different issues. And the Chief Justice can effect this. Through history of the Court, we know that some Chief Justices were aggressive, some demanded unanimous decisions as a matter of course, some permitted far ranging and robust legal theorizing. But here we have the second time in short succession wherein a unanimous decision occurred despite the topic being something where one wouldn't have expected unanimity in the Rehnquist court.

One might argue that this is a function of a restrained judiciary. One might suggests that Roberts is forcing the Court to look as narrowly as possible which tends to focus the issue in a way more amenable to unanimity. Of course, it is too early to tell this for sure. It is possible that Roberts is exerting such influence. Certainly between this and the O Centro case, one could argue that those kind of opinions would not have occurred under the Rehnquist court. Chief Justices in the past have exerted similar levels of influence. Perhaps Roberts is doing so now.

Time will tell, but it is interesting.
posted by dios at 9:07 AM on March 7, 2006

dios writes "Roberts appears to be doing an excellent job so far as Chief Justice. It is clearly much to early to tell, but he seems to be doing a great job of keeping the issues focused and not permitting the fractured opinions that became almost comical under the Rehnquist court."


Yes, dios, the State is one unified organism an should speak with one voice. One Country, One People, One Leader.
posted by orthogonality at 9:24 AM on March 7, 2006

Well, I'd like to see all the federal money that the universities retain by allowing the recruiters on campus be specifically earmarked to develop some 'truth in recruiting' seminars on recruiting days and near recruiting facilities. I would issue open invitations to recruiting age residents of the surrounding areas to attend as well.

I mean, it seems like our best and brightest future legal eagles, should be able to devise SOME creative machination to counter this creative machination. I also propose 3 hours of credit go to each of the students that participates in the ongoing legal wrangling that negating the effects of this decision might entail. In fact, a new Degree Program sounds good. The Juris Doctor with special concentration in "Maintaining Civil Rights and Academic Freedoms under Militaristic Governments" or something...
posted by sfts2 at 9:28 AM on March 7, 2006

How about you stay out of discussions when you don't understand what is being said? Your response is nothing more than confused poppycock, orthogonality. Or was this another attempt at being "humorous?"
posted by dios at 9:29 AM on March 7, 2006

Dios, you were ahead on this arguement, right up untill your skin went up and thinned on you. Sheeeessss.

I Retract My last Post, DIOS is again wrong!
posted by Elim at 9:43 AM on March 7, 2006

So your analysis of the substantive topic was altered by me telling orthognonality to not make off-topic derails. Impressive logic!
posted by dios at 9:46 AM on March 7, 2006

Ortho, dios has a point here. If justices disagree with the judgment of the court, they are duty-bound to dissent from the opinion of the court. When that happens, you have decisions that are 8-1, 7-2, 6-3, or 5-4. Lawyers, lower courts and the public interpret and rely on the majority opinion as "the law," and the dissenting opinions as "wishful thinking."

The real problem is not with 5-4 decisions, but with 2-3-4 decisions. You have three groups of people who couldn't disagree more strongly with each other on the legal approach. But two of these groups arrive at the same outcome (i.e. reverse or affirm) and they form the majority. What "law" do you take from this? This exact thing happened in Planned Parenthood v. Casey, in which the modern rule by which abortion rights are adjudicated was espoused by only three justices: O'Connor, Kennedy, and Souter. Blackmun and Stevens disagreed with the plurality and wished to simply reaffirm Roe. And the biggest numeric voting bloc - Rehnquist, White, Scalia, and Thomas - would have done away with Roe altogether.

As an internal political matter, Casey was a catastrophic failure of the Rehnquist Court. Not only did Rehnquist lose Kennedy to the plurality side late in the process, but Stevens, as the most senior justice on the winning side, was unable to get five justices to sign a true majority opinion. The end result hurt everyone on both sides of the debate: Abortion rights advocates saw the Roe rule redefined by moderates; while abortion opponents were powerless to stop the "gang of 3" from announcing new law.

And then it just got worse. The case challenging the McCain-Feingold campaign reform legislation, McConnell v. FEC, was announced thusly:

Stevens and O’Connor, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’Connor, Scalia, Kennedy, and Souter, JJ., joined, in which Stevens, Ginsburg, and Breyer, JJ., joined except with respect to BCRA §305, and in which Thomas, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). Breyer, J., delivered the opinion of the Court with respect to BCRA Title V, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. Thomas, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion Scalia, J., joined as to Parts I, II—A, and II—B. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which Rehnquist, C. J., joined, in which Scalia, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which Thomas, J., joined with respect to BCRA §213. Rehnquist, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which Scalia and Kennedy, JJ., joined. Stevens, J., filed an opinion dissenting with respect to BCRA §305, in which Ginsburg and Breyer, JJ., joined.

Can you find the law here? No wonder the issue has come up again before the Roberts Court. The Supremes took the case five years ago and basically scribbled all over it.

I know I'll disagree with most of Roberts's judicial philosophy, but I absolutely agree with dios that his discipline in trying to eliminate plurality opinions - a goal he mentioned in his confirmation hearing - is a Good Thing and will make him one of the best chief justices we've had.
posted by Saucy Intruder at 9:52 AM on March 7, 2006

does/can this apply to private businesses now too, many of whom get tax credits, incentives, and other funding from the government? where does this end? This isn't only applying to public universities, but all universities.
posted by amberglow at 9:53 AM on March 7, 2006

Why the Bush Administration's Legal Stance on "Don't Ask, Don't Tell" Undermines Its Legal Stance on the NSA's Warrantless Wiretapping
posted by homunculus at 9:59 AM on March 7, 2006

I know I'll disagree with most of Roberts's judicial philosophy, but I absolutely agree with dios that his discipline in trying to eliminate plurality opinions - a goal he mentioned in his confirmation hearing - is a Good Thing and will make him one of the best chief justices we've had.
posted by Saucy Intruder at 11:52 AM CST on March 7

And the way you do that is narrowly focus the issue and not permit wide ranging legal speculating. Not suprisingly, when you narrow the issue to resolve only the issue on appeal, more times than otherwise you will get unanimous decision because the limited legal principle is an easier one. What you run into problems with is when the Court tries to address all kinds of other issues that are not necessary to the resolution of the appeal.

For instance in this case, you could have judges jumping off on the military policy itself, on the issue of whether the government could tie funding to the relinquishing of a constitutional right, a revisitation of Dale, etc. There were plenty of opportunities for judges to depart and follow rabbit trails that were not necessary to the resolution of this suit. Judges permitted to do that, as they were under the Rehnquist court, can come up with all kinds of reasonings that fractures the Court's rulings. But if the Court is compelled to address only the limited issue on appeal and only rule on what is necessary to decide the case (a judicial canon), then you don't get all of that speculating and fracturing. And the result is more unanimity.

You have, in effect, a more restrained Court.
posted by dios at 10:01 AM on March 7, 2006

You also have no realistic guidelines in determining Court decisions, if they narrow everything down to just that situation. Narrowing leads to far, far more cases going back up to the Supreme Court, because they weren't addressed earlier.
posted by amberglow at 10:08 AM on March 7, 2006

Just to be clear for the partisans out there: this doesn't have anything to do with forcing the Administration's view or preventing dissent or stacking the Court so all are in political agreement. It is just a function of judicial restraint: if the Court is only addressing a narrow legal issue, the opinion will be narrower and more likely unanimous.
posted by dios at 10:08 AM on March 7, 2006

Lemme get this straight - but private schools don’t have to allow recruiters on campus?
Yeah, that’s bullshit if I’m interpreting that right.
I can’t say I mind military recruiters on campus. I don’t like the idea of anyone forced to have them through extortion, but I’m not fond of arbitrarially forcing them off campus either. So what - you change whether they can be on or off campus based on political climate?
Unless it’s a Quaker college or a seminary or something I don’t see any grounds for keeping them off.
...so do we prevent Lockheed from recruiting engineers on campus?
Dumb.
posted by Smedleyman at 10:13 AM on March 7, 2006

no, Smedley--it's that any school--public or private--has to allow recruiters if they want federal money in any form.
posted by amberglow at 10:15 AM on March 7, 2006

amberglow writes "Narrowing leads to far, far more cases going back up to the Supreme Court, because they weren't addressed earlier."

Which might be part of the plan, there has been some speculation here that neo-con/fundies are trying to execute a RL DOS attack on the supreme court. Pass so many blatantly unconstitutional state laws that the SC refuses to hear and there for over turn some cases because they don't have the time.

Is such a thing possible or the courts between state courts and the SC prevent this scenario?
posted by Mitheral at 10:21 AM on March 7, 2006

It is absolutely encouraging that there have been so many unanimous decisions under the Roberts court (8-0 in FAIR v. Rumsfeld, 8-0 in Illinois Tool Works v. Independent Ink, 8-0 in Scheidler v. National Organization for Women, 8-0 in Texaco Inc. v. Dagher, and on and on). It always has seemed that as long as Rehnquist had his 5-4 majority, he never even attempted to play the peacemaker and build a stronger coalition. The sample size we have with Roberts is of course fairly limited as of yet, and we will not have good data until at least the end of this term, but it is nice to see some unanimity.
posted by Pontius Pilate at 10:22 AM on March 7, 2006

Smedleyman: Lemme get this straight - but private schools don’t have to allow recruiters on campus?

Under the current law, that is correct. But if they choose to disallow recruiters, even at one relatively self-sufficient school (like the law school, which, in Harvard's case, even has its own endowment), no school in the entire university will receive federal funds, including all of the sciences and the med school. No university that I know, public or private, runs its sciences without federal assistance, so this is essentially forcing them to allow recruiting on campus.

Under this Court decision (and arguably, always throughout history) the federal government has had the power to force schools to allow them to recruit. But so far they have chosen not to exercise it in precisely that way, preferring the Solomon Amendment economic "incentive" approach instead.
posted by rkent at 10:22 AM on March 7, 2006

there has been some speculation here that neo-con/fundies are trying to execute a RL DOS attack on the supreme court. Pass so many blatantly unconstitutional state laws that the SC refuses to hear and there for over turn some cases because they don't have the time.

Is there anything other than convention preventing the Supreme Court to reverse lower court decisions without opinion? If it got too bad it seems like they could start granting "Certiorari-plus-Reversal" or something like that in spurious cases.

Honestly, if you're that determined to overturn the Supreme Court, it's time for a constitutional convention.
posted by rkent at 10:25 AM on March 7, 2006

I don’t like the idea of anyone forced to have them through extortion

They aren't forced to have them. They are just required to give them same access as is given other recruiters. If that access is "none" then the military gets none. But if you discriminate against the federal government's efforts to fulfill its military function, then you will not get federal money.

Unless it’s a Quaker college or a seminary

There is a specific exemption (discussed in the opinion) that institutions with "a longstanding policy of pacifism based on historical religious affiliation" do not have to comply.

there has been some speculation here that neo-con/fundies are trying to execute a RL DOS attack on the supreme court.

Is there anything those boogeymen strawmen evil doers neo-con/fundies won't do?
posted by dios at 10:26 AM on March 7, 2006

Which might be part of the plan, there has been some speculation here that neo-con/fundies are trying to execute a RL DOS attack on the supreme court. Pass so many blatantly unconstitutional state laws that the SC refuses to hear and there for over turn some cases because they don't have the time.

They can just vacate and remand with minimal instructions, which would not be a great burden upon the Court's time.

Also, there is a little thing called the Supremacy Clause:

"This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be Supreme Law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding."

Basically, state judges must uphold the Constitution even if state laws and / or state Constitution conflicts with it. So the blatantly unconstitutional laws are not even going to get to SCOTUS level, as they'll be stricken down at lower levels.
posted by Pontius Pilate at 10:28 AM on March 7, 2006

>They are just required to give them same access as is given other recruiters.

So wait, now its not about:

1. Inherent government power to recruit/draft as it pleases and expansion of that power, which is chilling.

2. Economic punishments that exploit the education system so it can never say no.

3. The valid protest against the anti-gay military.

4. The right (now nullified) of a univesity to claim or demand its campus be free of recruiters for discriminatary organiztions, in this case the military.

Its about equal time? Oh come off it.
posted by skallas at 10:32 AM on March 7, 2006

skallas, have you read the opinion?
posted by dios at 10:34 AM on March 7, 2006

(Did you know the army tries to recruit kindergarteners? My 5-yr-old brought home a bumper sticker, a keychain, and a pencil, all with the "Army of One" stuff all over it. Indoctrinate them early!)

Assuming this wasn't a joke, I'm appalled.
posted by davejay at 10:49 AM on March 7, 2006

Yes, as much of it as I could understand and various summaries.

My understanding is that a good part of the decision rests on this:

Even if the First Amendment were applicable here, Congress’ authority to raise a strong military should trump whatever minor infringement the Solomon Amendment imposes


On top of the conclusion that Solomon is not speech issue, as it does not hinder speech. As such the university cannot maintain its nondiscriminatory policies any longer and the power to punish one college now extends to the entire organization. The university must accept discriminatory recruiters based on this reasoning. This is, to me, akin of accepting the KKK on campus because political convenience and tradition, must like acceptable discrimination we've seen in past against other minorities.

The assumption that we cannot have a strong military without campus recruiters is ridiculous. Recruiters have all public spaces for their duties. They have slick advertising campaigns. They even have a first person shooter.

Forcing Solomon down the universities throats because "we need a strong military" is about as smart as invading iraq "to stop terrorism." This decision is very much in line with conservative thought that the state should uphold discriminatory traditions of the status quo.

I also don't see the right to maintain the army as card blanche to push recruiters where-ever Washington says, along with the pentagon's discriminatory policies. I see it as more of a list of government powers, one of which is to maintan a standind federal (non state militia) military. Talk about overstepping your powers.
posted by skallas at 10:49 AM on March 7, 2006

I've been reading on a few of the more extreme right-wing sites this silly idea that Roberts and Alito are suddenly "forcing" unanimous decisions as well. I really don't understand where the myth of these people being tough guys or something. Conservatives say this about John Bolton, too, as if he walks into the UN and holds Kofi's head in the toilet or something. Roberts didn't magically intimidate Ginsburg into voting the way he wants.

It was a unanimous decision because it was a no-brainer, odious as the Solomon law is. The military is one of the few things that the Constitution clearly allows the government to do pretty much whatever they want with it in terms of access. In the long run, I'd rather see recruiters coming to campuses to face massive protest and raise even more awareness about how stupid Don't Ask Don't tell is than another draft being established.
posted by XQUZYPHYR at 10:58 AM on March 7, 2006

"Did you know the army tries to recruit kindergarteners? My 5-yr-old brought home a bumper sticker, a keychain, and a pencil, all with the "Army of One" stuff all over it. Indoctrinate them early!"

This doesn't surprise me at all. When I was in high school recruiters used to follow 16 year old boys down the street pestering them until they took the brochures or set up a meeting with a recruiter or whatever. It was very much a hard sell to kids. I can only assume it's gotten worse since Iraq.
posted by joegester at 11:06 AM on March 7, 2006

Roberts didn't magically intimidate Ginsburg into voting the way he wants.

It was a unanimous decision because it was a no-brainer, odious as the Solomon law is.
posted by XQUZYPHYR at 12:58 PM CST on March 7

That is true, but not for the reason you are suggesting. Roberts didn't "intimidate Ginsburg into voting the way he wants." And the issue was "a no-brainer." But you have to ask why? The answer is because of Roberts' leadership. Again, the Chief Justice can exert enormous influence on the Court. It is not a fluke this case was resolved this way. Had this same case been in the Rehnquist Court, there would have been numerous opinions and it would not have turned on a narrow legal issue that made it a "slam dunk." There would have been opinions addressing some of the topics I mentioned above. There would have been concurrences and dissents because the judges would have been free to focus on whatever issue it wants. But the Chief Justice can force the issue to be focused on particular narrow point to make it a slam dunk.

There is much history about how Earl Warren forced the opinion in Brown v. Board to be unanimous. But the way Chief Justices do this is not to tell people "you have to agree with me." The way they do it is to know what everyone's complaints are and draft an opinion that everyone can agree on. That usually is the narrowest issue. The other ancillary issues are left out.
posted by dios at 11:11 AM on March 7, 2006

Well, looking over the opinion I find it to be rather compelling. One of the stronger arguments for me is that I see military recruiters as less problematic than potentially undermining the constitutionality of Title IX which can withhold funding from schools that discriminate on the basis of sex.

The other issues is that Solomon does not mandate what a school can say, or force it to say anything. Also the relationship between recruiters and schools does not in the opinion of the court rise to the association standard. This I'm inclined to disagree with.

Solomon is a bad law IMO, but that does not mean that it's an unconstitutional law.
posted by KirkJobSluder at 11:23 AM on March 7, 2006

From an financial point of view the tit-for-tat attitude of the government seems reasonable and expectable ; one would expect the government to be able to decide what to obtain in exchange for the grants given.

Yet from an economic point of view, considering that government isn't the same as a bank or a financier, there could be occasions in which the government must finance certain activities without imposing conditions that would be untolerable for the beneficiary.

Let for instance consider the case of a sick person, who is in dire need of financing/money to sustain himself. The government could ask the sick person to "go down and gimme 100 pushups" or a practical equivalent to obtain the financing, creating a situation damned-if-you-do , damned-if-you-dont.

By analogy, if the universities found the requirement of allowing recruiters intolerable, then they must not ask for federal funding ; yet question remains, is there a vested government interest in having efficient, working and well-funded public colleges regardless of short term return , measured in soldiers or whatever ?

Certainly soldiers are actually more demanded then lawyers , but if so then by market forces reasoning the funds should reach the pockets of soldiers rather then the law school, so that the best and brightest are attracted to the military ranks. Curiously enough best and brightest can only be attracted by ideologization as they certainly value their life to be more precious then a bunch of money.

If the paternalistic, slush fund granting government is deprecated when funding law schools without demaning soldiers and officiers in return, then by analogy it should be deprecated when assigning billions to defensive offence aka war operations abroad which still have to show returns. By the same people.
posted by elpapacito at 11:29 AM on March 7, 2006

Will schools have to allow every anti-gay recruiter on campus now? Or is this a special dispensation just for the military?
posted by Jatayu das at 11:29 AM on March 7, 2006

It's a special dispensation just for the military.
posted by mr_roboto at 12:16 PM on March 7, 2006

The No Child Left Behind Act gives the government access to personal information of every US high school student for recruiting purposes, so it's no surprise that the Supreme Court went with the hard sell approach here.

(1) ACCESS TO STUDENT RECRUITING INFORMATION- Notwithstanding section 444(a)(5)(B) of the General Education Provisions Act and except as provided in paragraph (2), each local educational agency receiving assistance under this Act shall provide, on a request made by military recruiters or an institution of higher education, access to secondary school students names, addresses, and telephone listings.

This seems to be because JAG made more of a free speech argument out of it than the schools made a discrimination issue out of it.

Congress has made clear through lots of legislation concerning aid to foreign NGOs [please don't use the word abortion, please don't imply that condoms work better than abstinence or we'll pull your funding] and aid for Internet access to schools and libraries [please use filters on every staff and public computer or we'll yank your funding] that they see withholding money as THE big stick to get organizations to comply with increasingly invasive cultural policies. This wasn't about recruitment in my mind [and I have a partner at Vermont Law School, the school that was one of those in the suit] it was much more about viewing bias based on sexual orientation as discrimination, and trying to have policies about not allowing discriminatory groups into the recruitment fair. To be fair, however, JAG itself does not discriminte against openly gay people, though the military generally does.
posted by jessamyn at 12:19 PM on March 7, 2006

Pontius Pilate writes "They can just vacate and remand with minimal instructions, which would not be a great burden upon the Court's time."

Ok, that's good. Thanks.
posted by Mitheral at 12:35 PM on March 7, 2006

I'm going to get myself some of that military swag, and add an "N" so it reads, "An Army of None."
posted by fandango_matt at 3:50 PM on March 7, 2006

dios, while Roberts can write the opinion such that everyone feels comfortable signing it, he can't stop Ginsburg or Stevens from writing a separate concurrence on gay rights, the First Amendment, the weather, or whatever the hell they want to talk about. The CJ can't censor anything that comes out of an associate justice's chambers.
posted by Saucy Intruder at 3:54 PM on March 7, 2006

Saucy Intruder, I don't think anyone's talking censorship of opinion here. It's more about leadership than anything else.
posted by Pontius Pilate at 3:58 PM on March 7, 2006

If you have a complaint, it is with Congress, not the Court.

This is why this court will be good. They will actually enforce the laws that our Congress has been passing, instead of liberalizing the laws just enough. I don't think that this is going to be as good for the conservatives as they might think.
posted by betaray at 4:15 PM on March 7, 2006

Roberts does deserve credit for the lack of concurrences. I think he was able to bring to the Justices the point of view of the Bar that Supreme Court jurisprudence was becoming useless -- practicioners and lower courts were left with the naked decision (affirm or reverse) and nothing more really to help them.

Whether he deserves credit for the lack of dissents, I don't know. Disciplining the majority opinions to avoid provocative dicta is probably helpful, but I can't imagine that Breyer, Ginsberg or Stevens is going to lured into not dissenting on that basis. Perhaps they're trying to generate credibility with Kennedy or Roberts to bring them over on close questions in the future.

That said, though, I think that they were 100% sincere in the Solomon case. Breyer, Ginsberg and Stevens believe passionately in the regulatory welfare state -- the power of legislators to spend money and impose conditions upon other sectors of society. The government gives way only when it comes to select individual freedoms -- the right to abortion, yes, the right not to have to squeal in displeasure because there's a JAG recuiter in room 202 during OCI, no.
posted by MattD at 4:35 PM on March 7, 2006

If you're smart enough to go to law school, you should be smart enough to see through the lies that military recruiters tell, or you will probably make a poor lawyer. And hey, who doesn't want to see more lawyers on the front lines? Besides, the services need more lawyers. There's a lot of torturers for JAGsters to defend in the coming reckoning.
posted by fourcheesemac at 6:31 AM on March 8, 2006

We'll to be utilitarian about this, would you rather have good, educated (and I don't know, maybe even liberal) lawyers in the military, or not? If everyone who had quams about an orgnanization didn't join it, it would be left to the radicals.
posted by Lord Chancellor at 8:43 AM on March 8, 2006

FAST FORWARD PREDICTION: Thirty years from now (maybe sooner) the "gay conundrum" upon which America's legal, political, and media processes have pointlessly wasted so much time and effort, will be an embarrassing footnote. Like Loving v. Virginia ....which amazes most young people today ("Wow, um, can you believe bi-racial marriage was illegal until, like, the 1970's?!!")

I predict that future college professors and Constitutional Law professors will cringe when teaching the "homophobic hopscotch" cases of the 80's, 90's and 00's. (Just as they do today when they teach Dred Scott, Plessy v. Furgeson, Berea College v. Kentucky, and all the other historic blindspots in our ability to understand and apply that whole Due Process thingamajig.)

And if there'd been a MetaFilter in 1966, there would have been people like Dios there arguing that Virginia had a valid right (or a duty, or a moral imperative, or etc.) to outlaw bi-racial marriages. ...Blah blah bah.

...Stay tuned Folks!!
posted by applemeat at 9:08 AM on March 8, 2006

If you're smart enough to go to law school, you should be smart enough to see through the lies that military recruiters tell

Good point, and keeping smart people out of JAG corps only hurts the Army and makes things worse.
posted by applemeat at 9:16 AM on March 8, 2006