- The Washington Times - Thursday, March 9, 2006

The legal battle over the presence of military recruiters on university campuses ended Monday when the Supreme Court unanimously ruled in favor of the government. Not only was this a sound legal victory, but also a firmly stated rebuke of the anti-military bias fashionable across the nation’s law schools.

Georgetown was among a group of law schools and faculties claiming the Solomon Amendment violates their First Amendment right to free speech by requiring that any school receiving federal funds admit military recruiters on campus. The schools, which banded together under the Forum for Academic and Institutional Rights, oppose the Clinton-era law banning professed homosexuals from military service, also known as the “don’t ask, don’t tell” policy. FAIR argued that the Solomon Amendment was unconstitutional because it forced schools to either condone the presence of a discriminatory group on campus, which went against their anti-discrimination policy, or be denied federal funds.

The Supreme Court resoundingly disagreed. As Chief Justice John Roberts wrote in his opinion, “The Solomon Amendment neither limits what law schools may say nor requires them to say anything,” adding, “nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.” The chief justice then offered a Scalia-like rebuke: “We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so… surely, students have not lost that ability by the time they get to law school.”

In fact, Congress’ constitutional power to “provide for the common Defence” and “to raise and support armies” includes the “authority to require campus access for military recruiters,” as Justice Roberts wrote, regardless of whether it offers incentives like federal money. “Congress’ decision to proceed indirectly does not reduce the deference given to Congress in the area of military affairs,” the court held.

It’s remarkable that all eight justices agreed to this sweeping decision (Justice Samuel Alito was not on the bench during oral arguments). One explanation is that FAIR’s case was damaging enough to warrant a stinging and indisputable precedent, as unlikely as Congress is to act on it any time soon. The court made clear that law schools like Georgetown cannot be allowed to let their anti-military bias impede Congress’ responsibility to “provide for the common Defence.”

Almost entirely alone in its public support of the government’s case was George Mason University, which increasingly has stood athwart the liberalism of its competitors. Now it can add a Supreme Court victory to its rising reputation.

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