You and I have had a few days to read and digest the U. S. Supreme Court's decision in Rumsfeld v. Forum for Academic and Institutional Rights. Inc.   That's the case which ruled against several law schools' constitutional challenge to a law denying federal aid funds to schools which close their doors to military recruiters.   If it upsets you that Congress can deny money to the schools for these reasons, you haven't really read the case because that it said far more than that.

What Rumsfeld v. FAIR said was that although there are generally limits on Congress' ability to place conditions on aid it hands out, such conditions cannot be unconstitutional where Congress could require the conditions anyway.   In other words, Congress has the power to force military recruiters on campus.

The Act challenged by the law schools, the Solomon Amendment, requires schools which receive federal funding to provide access to military recruiters at least equal in quality and scope to the access to campuses and students that is provided to any other employer.   That means the same access it provides to recruiters receiving the "most favorable access."   As an aside, the act provides an exception only for institutions with a "longstanding policy of pacifism based on historical religious affiliation."

Some professors claimed, in an amicus brief (friend of the court writing), that the Solomon Amendment meant schools need only treat all recruiters equally, meaning they could exclude whomever they would under their non-discrimination recruiting policies.   If the school refused access to IBM or some other employer because they too had a "don't ask, don't tell" policy, then they would be justified in barring military recruiters.   This argument was denied.   The Court came as close to laughing at this amicus brief saying, "We refuse to interpret the Solomon Amendment in a way that negates its recent revision, and indeed would render it a largely meaningless exercise."   And "that is rather clearly not what Congress had in mind." (emphasis original)   Rather military recruiters must be given the same access as recruiters who comply with the institution's policies. (emphasis added)

Generally speaking Congress has limited power to condition receipt of benefits on specific acts by recipients.   More specifically, Congress certainly cannot condition a benefit on an act it would be otherwise be prohibited from requiring.   In other words, if it were unconstitutional for Congress to compel law schools to permit military recruiters on campus, it certainly could not withhold funding in order to accomplish the task.   But "it is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly."

Also, the decision in this case distinguished between First Amendment rights to free speech and the Solomon Act's regulation of conduct.   Lower courts had found that because the conduct required certain elements which involve speech, it was an infringement of the First Amendment.   Schools were, in effect, required to speak the military's message or, in the alternative, engage in "expressive acts" which similarly spoke the military's message.   The court acknowledged that the regulated speech or expressive acts was subject to First Amendment scrutiny but "there is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse" and "it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language."   For example, requiring an employer to take down a sign reading "White Applicants Only" for a job posting is not an abridgment of speech.   Requiring universities to send out e-mails scheduling military recruitment is not the same as requiring the them to endorse military service.   "It trivializes the freedom ... to suggest that it is."   "A law schools' decisions to allow recruiters on campus is not inherently expressive."

The schools had also argued that the Solomon Amendment infringed upon First Amendment rights to free speech by inhibiting schools' freedom of expressive association.   "If the government were free to restrict individuals' ability to join together and speak, it could essentially silence views that the First Amendment is intended to protect."   The Court ruled against this argument because merely allowing recruiters on campus and providing them with the same services provided to other recruiters did not force them to "associate" with them since recruiters were obviously "not part of the law school.   recruiters are, by definition, outsiders who come onto campus for the limited purpose ... not to become members of the school's expressive association.   The distinction is critical ... a speaker cannot 'erect a shield' against laws requiring access 'simply by asserting' that mere association 'would impair its message.'"

Finally, the Supreme Court acknowledged the "Constitution grants Congress the power to 'provide for the common Defence,' 'to raise and support Armies, and to provide and maintain a Navy.' ... Congress' power in this area 'is broad and sweeping' ... and there is no dispute in this case that it includes the authority to require campus access for miloitary recruiters ... unless Congress exceeds constitutional limitations on its power in enacting such legislation ... 'judicial deference ... is at its apogee' when Congress legislates under its authority to raise and support armies."   In throwing out FAIR's arguments and lower courts' ruling, the Court noted, "The issue is not whether other means of raising an army and providing for a navy might be adequate ... (regulations are not 'invalid' simply because there is some imaginable alternative that might be less burdensome on speech).   That is a judgment for Congress, not the courts ... It suffices that the means chosen by Congress add to the effectiveness of military recruitment."

In closing, the Supreme Court slammed the organization's arguments, saying, "FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect ... the law schools' effort ... plainly overstates the expressive nature of their activity ... while exaggerating the reach of our First Amendment precedents."

To be blunt, the Court spanked not only these law schools, the "friends of the court," and the lower courts, but also anyone who trivializes free speech.   That is a refreshing notion.   And let it not be lost that this issue was decided unanimously - not via a conservative majority.   Alito was not even involved in this case.   Hopefully the message will hinder others who would waste our courts' time by raising frivilous First Amendment claims.   At the very least it clarifies prior law and makes it clear that this court will not attempt to legislate from the bench.