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Many schools that disapprove of the congressionally mandated "don't ask, don't tell" policy that prevents openly gay people from serving in the military have barred military recruiters from the same access to students that is granted to other employers. This provoked Congress to pass a law denying federal funds - institutions of higher education receive about $35 billion annually - to any school discriminating in that way against the military. The law exempts any institution with "a long-standing policy of pacifism based on historical religious affiliation."
Monday's opinion was written by Chief Justice John Roberts who, during last December's oral argument, said of the schools' desire to discriminate against the military, "You are perfectly free to do that, if you don't take the money."
The court has held that "judicial deference ... is at its apogee" when Congress legislates under its enumerated power to raise and support armies, so Congress could have directly mandated access for military recruiters rather than doing so "indirectly" with incentives - conditioning spending on recruiters' access. And the law at issue, Roberts 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."
Suppose, Roberts wrote, an individual announced that he intended to express disapproval of the Internal Revenue Service by refusing to pay taxes. That would not mean that the tax code violates the First Amendment.
The court has held that freedom of speech prohibits government from telling people what they must say, but those cases concerned government dictating the content of speech, which the law concerning recruiters' access to law school students does not. The court has held that state law cannot compel a parade - which is a form of expression, not mere motion - to include a group whose message the parade's organizer does not want to express. The law schools are in no way inhibited from - or bashful about - proclaiming their message of disapproval about "don't ask, don't tell."
"Accommodating the military's message," Roberts wrote, "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."
Recruiters are obviously not components of law schools; they are outsiders on brief visits for a limited purpose. "Nothing about recruiting," Roberts wrote, "suggests that law schools agree with any speech by recruiters." Besides, "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, pursuant to an equal access policy." Then, Roberts' tartness: "Surely students have not lost that ability by the time they get to law school."