Solomon Amendment Upheld

[Samuel Bagenstos]

Marty's last paragraph, of course, is the issue.  I don't see anything
wrong with this decision.  It's in many ways a pro-antidiscrimination
decision.  But the real test will come when we're back in a case like
Dale, where the discrimination is not against the military but against
gays and lesbians, people with disabilities, or some other minority
group.  Will the Court make the same kind of ruling?

I guess I worry that the Court here gets around Dale too easily on the
basis of the member-stranger distinction.  If that's the crucial
distinction, there might still be a constitutional exemption from
antidiscrimination laws in admissions or hiring decisions, and FAIR
could be a very narrow exception to Dale.  I think this Chief learned a
lot from the old Chief, including the ability to write an opinion so as
not to tie himself down in the future.

====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO  63130
314-935-9097
Personal Web Page: 
http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog:  http://disabilitylaw.blogspot.com/

>>> "Marty Lederman" <marty.lederman at comcast.net> 3/6/2006 9:48 AM >>>
Re: (Darryl) Levinson thesis (continued)Notably, the Court does not
rely on the Spending Clause, but holds that the requirement of military
access could be imposed directly.  Indeed, the Court first rejects the
amici's statutory argument that the Solomon Amendment merely requires
access to the military on the same conditions as those imposed on other
employers.  The implication is that schools must afford DoD exemptions
from any recruiting rules that have the effect of giving the military
less access to students than some other employer.  Thus, the holding is
that the government may require schools (including private schools) to
give preferential access to military recruiters, without any First
Amendment concerns.  

IMHO, this is the holding that the Court should have issued in Dale. 
The Court today distinguishes Dale on the ground that the required
inclusion there affected the group's membership, rather than its invited
visitors.  That, of course, doesn't distinguish Hurley.  As for Hurley
(and Tornillo and PG&E), the Court holds that requiring access to other
parties' speech is only constitutionally problematic where that access
has a palpable effect on one's own speech (such as by alterning the
message conveyed in a parade (Hurley), or by monopolizing scarce space
in a newspaper that could have been used for the plaintiff's own speech
(Tornillo)).  The weakest part of today's opinion, I think, is the
Chief's attempt to distinguish PG&E.  Here's what he writes:
  The same is true in Pacific Gas. There, the utility company regularly
included its newsletter, which we concluded was protected speech, in its
billing envelope. 475 U. S., at 8.9. Thus, when the state agency ordered
the utility to send a third-party newsletter four times a year, it
interfered with the utility's ability to communicate its own message in
its newsletter. A plurality of the Court likened this to the situation
in Tornillo and held that the forced inclusion of the other newsletter
interfered with the utility's own message. 475 U. S., at 16.18.  In this
case, accommodating the military's message does not affect the law
schools' speech, because the schools are not speaking when they host
interviews and recruiting receptions. Unlike a parade organizer's choice
of parade contingents, a law school's decision to allow recruiters on
campus is not inherently expressive. Law schools facilitate recruiting
to assist their students in obtaining jobs.  A law school's recruiting
services lack the expressive quality of a parade, a newsletter, or the
editorial page of a newspaper; its accommodation of a military
recruiter's message is not compelled speech because the accommodation
does not sufficiently interfere with any message of the school.
In other words, Roberts is holding that there is a threshhold test --
"Is the plaintiffs' conduct 'inherently expressive'?" -- that triggers
Tornillo-like scrutiny.  So, for instance, if PG&E had not had a
practice of including its own newsletter in the billing envelopes -- if
the state there had required that it provide the third-party newsletter
alongside its plain ol' "not inherently expressive" electric bills --
there would have been no First Amendment problem.  This is a fairly
significant revisionist reading of PG&E, in which the plurality's
decision turned on the fact that including the required inserts would
prompt the electric company to engage in unwanted counterspeech.

Today's decision is much more in keeping with PruneYard (which it
favorably cites) than with PG&E and Dale.  Together with Johans, it
shows that the Court is cutting back on some of the excesses of its
compelled-speech doctrine.  Because I think PruneYard was rightly
decided, I don't think this is necessarily a bad thing.  I only wish the
Court would now realize that Abood, Keller and Dale were wrongly
decided.

----- Original Message ----- 
  From: Marty Lederman 
  To: CONLAWPROF at lists.ucla.edu ; LawCourts-L at usc.edu 
  Sent: Monday, March 06, 2006 10:12 AM
  Subject: Solomon Amendment Upheld


  unanimously, in an opinion written by the Chief Justice --
http://scotus.ap.org/scotus/04-1152p.zo.pdf.




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