U.S. Supreme Court Rules Military Recruiters Allowed On-Campus

I believe that the first step in most of the 12 step recovery programs is to admit that you have a problem. Well, in that spirit, let me admit that I went to law school. A good law school. Was on Law Review. Had my article published. Graduated. Passed the bar. And clerked for a year. Phew! I feel so much better.
While my law school education has proven to be invaluable, I also consider myself to be fully recovered. Mostly. I do have my doubts when I pay more attention to certain Supreme Court cases than the average member of society. Call it a relapse, but it does happen and I’m not ashamed to admit it. The most recent case that I’ve been following was argued last year before the U.S. Supreme Court and the Supremes just handed down a rare unanonymous verdict. In an eight to nothing vote (Justice Alito did not take part in oral arguments so did not vote), Chief Justice John Roberts, wrote for the court that the colleges and universities must allow military recruiters on-campus even though the military discriminates against gays and lesbians through its “don’t ask, don’t tell” policy. The schools had argued that forcing them to accept such on-campus visits infringed on their First Amendment right to free speech. While the law professors who crafted that argument are pretty clever, they weren’t clever enough.

“A military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message,” wrote Chief Justice Roberts in his first major written opinion for the Court.
I could never understand how forcing the schools to allow military recruiters on-campus, and therefore allow them to exercise their First Amendment freedom of speech rights, infringed upon the rights of the schools to exercise their freedom of speech rights. Wouldn’t that be akin to a president running for re-election refusing to allow his opponent the opportunity to speak in a televised debate because the views of his opponent conflicted with his own views? Roberts, apparently reading my mind (insert laughter here, folks), wrote that there are other less drastic options for protesting the policy. “Students and faculty are free to associate to voice their disapproval of the military’s message,” he wrote. “Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students — not to become members of the school’s expressive association.”
So what are the solutions for those school that object to the military’s discriminatory hiring practices? There are two good options. First, nothing actually requires any school to allow the military on-campus. The Solomon Amendment, which was the statute being litigated, only requires schools which accept federal funding to allow the military on-campus. So don’t take the money. If the schools sincerely believe that this is a significant moral issue, then morality should trump their balance sheets. Put your money where you mouth is and refuse the money. Then you can refuse to allow the military recruiters on-campus. Somehow I doubt that moral beliefs of these schools are strong enough that they will take that path. Which leaves option number two: counter the speech of the military with your own speech. Outside the recruiting rooms, post signs that inform the students that the military discriminates against gays and lesbians and explain why the school disagrees with that policy. While the vast majority of military recruiters are unlikely to welcome such in-your-face signage, these men and women get paid to dodge bullets for a living. I doubt that they’re going to freak out when they read posters written by a handful of law school professors.
What is ironic to me about this whole episode is that my law school professors used to strenously argue that the best defense against objectionable speech was more speech, not less. Let the Holocaust deniers have their say. Let the Ku Klux Klan march through Skokie. Let them show the world exactly who they are. For when people really understand the message and the messengers, they’re more likely to be repelled than attracted. Should the military’s discriminatory hiring practices be regarded as akin to the message of the Holocaust deniers and the KKK? That’s a debate for another day. But the solution is the same. Rather than attempting to silence speech with which you disagree, work to expose it. And then counter it with your best arguments. If you’re in the right, then you will far more supporters than you’ll lose.