The Solomon Amendment and Free Association

By May 3, 2005

The Supreme Court announced yesterday that it will review the Third Circuit’s decision in the Solomon Amendment case (the Third Circuit had ruled the Solomon Amendment—which requires universities that receive federal funds be open to all military recruiters on campus—unconstitutional). I agree with Orin Kerr: the Court will almost certainly reverse the Third Circuit and restore the Solomon Amendment. I also agree that the decision is not likely to be close.

Several individuals have asked me for my thoughts on the constitutionality of the Solomon Amendment. The plaintiff law schools are arguing that the case is just like Dale v. Boy Scouts of America and that requiring a school to permit military recruiters on campus is much like requiring the Boy Scouts to permit gay scoutmasters. In other words, to the schools, the Solomon Amendment violates their right to free association (which undeniably includes the right to exclude those who do not agree with your mission or message). Yet the Solomon Amendment is not like the New Jersey public accommodation law at issue in Dale. In Dale, the Boy Scouts could not exist at all in New Jersey unless they agreed to admit a scoutmaster who did not share the group’s point of view. The Solomon Amendment, on the other hand, does not require all universities to permit military recruiting—it only says that schools receiving federal funds must be open to recruiters. While it is certainly true that the vast majority of even private universities depend on federal funding, it does not follow that they then have a right to that funding with no strings attached. In fact, universities are used to living with Title VI and Title IX, which provide that schools receiving federal funding may not discriminate on the basis of race and sex, respectively.

In other words, the law schools are arguing that they have a constitutional right to receive millions of dollars of federal funds without giving recruiters empty classroom space to interview students who have interest in military service. The law schools are certainly entitled to their principles, but they are not entitled to government financial support for those principles.