Breaking News

Court upholds “Solomon Amendment”

In a sweeping legal victory for the U.S. military, the Supreme Court ruled unanimously on Monday that Pengtaon recruiters must be assured an equal opportunity with other employers to sign up students at the nation’s law schools. Upholding the so-called “Solomon Amendment,” the Court ruled in an opinion by Chief Justice John G. Roberts, Jr., that the military must be given access to those campuses even though it violates the law schools’ policy against facilitating discrimination against homosexuals. The military’s “don’t ask, don’t tell” policy bars homosexuals who are publicly identified from serving in any of the services.

In a part of the decision rejecting a non-constitutional argument for avoiding the “Solomon Amendment,” the Court declared that law schools could not exclude the military even if they also excluded all other potential employers that similarly declined to hire gays and lesbians. “Applying the same policy to all recruiters is insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that ‘provided to any other employer.’ …Under the statute, military recruiters must be given the same access as recruiters who comply with the [schools’ non-discrimination] policy.” Although the law is not restricted to law schools, but rather applies to all colleges and universities, it has been tested primarily by law schools, acting through an organization known as Forum for Academic and Institutional Rights (FAIR).

The ruling rejected all of the law schools’ First Amendment claims. They had attempted, the Court said, “to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect. Those arguments included assertions that they were being coerced into supporting the idea of discrimination against gays, that they were being compelled to subsidize the military’s anti-gay message, and that they were being forced to engage in “expressive conduct” in favor of the anti-gay program.

Finding that Congress had the constitutional authority, under its power to “raise and support armies,” to command colleges to accept military recruiters, the Court said there was no constitutional problem in achieving the same result by threatening to cut off federal funding if equal access is denied. “It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly,” it added.

Rejecting the “compelled speech” challenge, the Court commented: “The Solomon Amendment neither limits what law schools may say nor requires them to say anything.” The Amendment, it said, “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.”(emphasis in original). “There is nothing in this case approaching a government-mandated pledge or motto that the school must endorse.”

The ruling overturned a decision by the Third Circuit Court striking down the “Solomon Amendment.” Under that Amendment, colleges that deny equal access to military recruiters may lose a wide array of federal funds to their entire institution.

That decision in Rumsfeld v. Forum for Academic and Institutional Rights (04-1152) was the only decision Monday in an argued case. New Justice Samuel A. Alito, Jr., did not take part; the case was argued before he joined the Court.

The Court again took no action on the appeal by Jose Padilla, a U.S. citizen who is challenging his capture and detention as an “enemy combatant.” The Court has examined that case five times without announcing any reaction to it. The next time the Court would consider it would be March 17. (See below for further information on the Orders List.)

In a pair of pauper cases, the Court agreed to define the requirement under the Prison Litigation Reform Act of 1995 that prison inmates must exhaust their challenges administratively before they may bring a federal civil rights lawsuit protesting prison conditions. The cases are Jones v. Bock (05-7058) and Williams v. Overton (05-7142). The Circuit Courts are split on the issue.

The two cases raise one issue in common: must a federal court dismiss entirely a prisoner’s civil rights claim about prison conditions if any one of the claims has not been exhausted in prison grievance machinery. The Bock case also raises the question of whether there is a heightened pleasing requirement on the exhaustion issue, meaning that the inmate must lay out in the lawsuit all of the specifics about how the claims were exhausted previously. The Williams case also raises the queswtion of whether an inmate has not exhausted a prison grievance proceeding if the prisoner did not name a specific prison official or guard who is later named in the civil rights lawsuit. The two cases come from the Sixth Circuit, one of the federal appeals courts that has taken the most restrictive view of inmates’ right to sue if they have not exhausted their claims previously.

Among the cases denied review on Monday was an attempt to assert a constitutional claim when an elected state judge declines to withdraw from deciding a case that involves the interest of individuals or groups that contributed campaign money to that judge. The case raised a due process issue, not an ethical question, about the failure of an Illinois Supreme Court justice to take himself out of a case reviewing a massive verdict against State Farm Mutual Automobile Insurance Co. The state Supreme Court, with Justice Lloyd Karmeier participating, reversed a $456.7 million award againt the auto insurer on a breach of contract claim. The case was Avery v. State Farm (05-842).

The Court also declined to reconsider its prior rulings on the factors that judges are to use in considering the reliability of an eyewitness identification of a suspectg during a lineup or photo array. The case was Perez v. U.S. (05-596).