Solomon Amendment Upheld

[Sanford Levinson]

Re the sentence:  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....
 
 
I think the rabbit in the hat is "inherently expressive."  Surely there
is a mixture of instrumental and expressive interests involved.  Why
can't a law school say, "we try to facilitate access to job
opportunities for our students so long as we regard the particular
opportunities as facilitating the highest goals of the university, which
is to establish justice [and we do not regard all legal practice that is
not illegal as fitting our goal]."  I wonder, for example, what policies
St. Thomas, Liberty, Regent, Oral Roberts, and similar schools follow
with regard to access to their campus by employers.  Is the ACLU, for
example, or Americans United for Separation of Church and State, welcome
to seek out students there, however foolish that might be prudentially?

 
sandy
 
 
 
 
 
 owner-lawcourts-l at usc.edu <mailto:owner-lawcourts-l at usc.edu>
[mailto:owner-lawcourts-l at usc.edu] On Behalf Of Marty Lederman
Sent: Monday, March 06, 2006 9:49 AM
To: Marty Lederman; CONLAWPROF at lists.ucla.edu; lawcourts-l at usc.edu
Subject: Re: Solomon Amendment Upheld


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 <mailto:marty.lederman at comcast.net>  
	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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