547 U.S. 47 (2006), argued 6 Dec. 2005, decided 6 Mar. 2006 by vote of 8 to 0; Roberts for the Court; Alito, who was appointed to the Court after the oral argument in this case, took no part in its consideration or decision. A 1993 federal statute excludes from military service those who have engaged in homosexual acts or announced that they are homosexual. A number of law schools reacted by excluding military recruiters (but not the legislators and president who approved the statute) from their campuses. Congress responded with a statute known as the Solomon Amendment, which cuts off some federal funds to universities that refuse to give military recruiters access to campuses and students equal to that provided to other employers.
An association of law schools brought suit attacking the constitutionality of the Solomon Amendment as an infringement of freedom of speech and association. The Supreme Court rejected the challenge, concluding that the schools had “attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect” (p. 70).
Noting that the Solomon Amendment neither limits what schools or their faculties may say nor requires them to say anything with which they disagree, the Court concluded that the statute is a regulation of conduct, not speech. Congress may forbid racial discrimination or discrimination against military recruiters, and therefore may incidentally forbid a sign reading “White Applicants Only” or require a sign reading “Military Recruiters Available in Room 123 at 11:00 a.m.” The government conceded that law schools remain free to post anti-military signs and even “help organize student protests” (p. 60). The Court did not say whether such activities could become so harassing as to violate the Solomon Amendment, nor did it address whether such protests, if they reached that level, would be protected by the First Amendment.
Unlike flag burning, which is constitutionally protected, the exclusion of military recruiters from a university campus is not inherently expressive. The Court found that refusing access to military recruiters is more like refusing to pay taxes—in neither case does such conduct acquire constitutional protection just because it is accompanied by criticism of the government.
The Court also rejected analogies between the Solomon Amendment and statutes through which governments had unconstitutionally required newspapers to publish material to which they objected, required parade organizers to include participants the organizers objected to, or required the Boy Scouts to appoint objectionable scoutmasters. The Court has repeatedly held that high school students can distinguish between speech the school sponsors and speech the school is legally required to permit. Here, the Court acidly noted that students surely “have not lost that ability by the time they get to law school” (p. 65).