Yesterday the Supreme Court ruled that universities must open their doors to military recruiters if they want to continue receiving federal funds, even if those universities oppose the military’s “don’t ask, don’t tell” policy. Many university law schools had claimed that being forced to associate with the recruiters was an infringement of their free speech rights. But in his unanimous opinion Justice John Roberts countered this argument, citing the federal law that requires universities to accept recruiters in order to receive funding:
The Solomon Amendment regulates conduct, not speech. It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say…. [It] neither limits what the law schools may say nor requires them to say anything.
The opinion also considered campus visits a good recruiting tool. Justice Sandra Day O’Connor added that, in any case, the presence of recruiters does not prevent schools from actively voicing their opposition to military policies. (The federal law is more contentious among many university law schools, because they require recruiters to sign pledges saying that they will not discriminate based on sex, race, gender, or other factors.)
Stephen Bainbridge, a law professor at UCLA, explains that the key issue here is the “unconstitutional conditions doctrine.” As Justice Roberts explained, “The Solomon Amendment would be unconstitutional if Congress could not directly require universities to provide military recruiters equal access to their students.” Congress isn’t forcing campuses to welcome military recruiting—universities can always ban recruiters if they’re willing to forego federal funding.
But that’s often easier said than done. Universities receive $35 billion from the federal government each year, with a good chunk of that money going towards medical and scientific research. Academia is not equipped to make up the difference if that funding is pulled, which means that the federal government will continue to have significant leeway in directing what universities can and can’t do.