Ruling Lets the Military Recruit on Campuses
The military has a right to recruit on college campuses and at law schools nationwide, the Supreme Court ruled Monday, despite the Pentagon’s policy of excluding openly gay men and women from its ranks.
The justices unanimously rejected a free-speech claim brought by some law schools and professors who said they should not be forced to aid an employer who discriminated against job applicants because of their sexual orientation.
In his first major opinion for the court, Chief Justice John G. Roberts Jr. called this legal claim a stretch. The decision upheld the Solomon Amendment, in which Congress said that colleges and universities that take federal money must give the Pentagon the same right to recruit on campus as other employers enjoy.
“The Solomon Amendment regulates conduct, not speech,” Roberts said. “It affects what law schools must do -- afford equal access to military recruiters -- not what they may or may not say.... [It] neither limits what the law schools may say nor requires them to say anything.”
Monday’s case did not arise from campus opposition to the Iraq war, nor have there been major protests over military recruiting. Unlike the Vietnam era, campuses are not centers of widespread protests, nor have military recruiters been barred from entering campuses.
Nonetheless, several law schools have carried on a mostly symbolic protest against the Pentagon’s refusal to change its policy against gays. Since the 1960s, the Assn. of American Law Schools has had a policy of refusing to aid recruiting by employers who had discriminatory hiring practices. In 1990, this policy was amended to include sexual orientation.
To enforce the policy, some law schools refused to post information on military recruiters who planned to visit and would not make rooms available where recruiters could meet with people interested in becoming military lawyers.
“No one was denying them access. We just withheld affirmative support,” said Stanford Law Dean Larry Kramer, who was a New York University law professor when the case began.
But lawmakers objected to what they saw as second-class treatment for military recruiters. In 1995, they adopted an amendment sponsored by the late Rep. Gerald B.H. Solomon (R-N.Y.) that threatened to cut off federal funds to a college or university that prevented the armed forces from recruiting effectively on campus. In recent years, Congress has strengthened the amendment to say the military must be given equal treatment when its recruiters visit a campus.
Colleges and universities did not challenge the law. They had $35 billion a year in federal aid at stake.
“We are in a war, whether properly declared or not, and during a war, 1st Amendment rights nearly always retract,” said Matthew Spitzer, dean of USC Law School. “The idea the Supreme Court would tell the federal government it could not attach a condition to the receipt of federal funds is unthinkable.”
However, the law faculty at several dozen schools, including Stanford, New York University, Georgetown and the University of San Francisco, joined a lawsuit to challenge the measure as unconstitutional.
They relied in part on a Supreme Court ruling that was seen as a major setback for gays six years ago. The court, in a 5-4 decision, said the Boy Scouts of America had a free-speech right to expel an openly gay scout master because his presence conflicted with their message of “morally straight” behavior.
The challengers to the Solomon Amendment said the same logic should work in reverse. They said they had a free-speech right to exclude anti-gay employers, including the Pentagon, because their presence would conflict with their message of tolerance and nondiscrimination.
The U.S. Court of Appeals in Philadelphia agreed and said the Solomon Amendment was unconstitutional because it “compels law schools to propagate the military’s message,” including its bias against gays.
The Bush administration appealed that ruling on behalf of Defense Secretary Donald H. Rumsfeld, and the Supreme Court had no trouble reversing the ruling Monday in Rumsfeld vs. FAIR.
The chief justice said the law posed no free-speech problems. First, the law schools and the faculty are not required to speak in favor of the military. Second, they may speak openly against the military without losing federal money. And third, he said, students will not be fooled into thinking the law school agrees with the Pentagon simply because it has permitted the Pentagon to recruit on campus.
“We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits,” Roberts wrote, referring to a decision that allowed a Bible study group to meet on campus at a high school. “Surely students have not lost that ability by the time they get to law school.”
All the justices signed the opinion except for Justice Samuel A. Alito Jr., who did not participate.
“I am obviously disappointed. There is no sensitivity in this opinion to the important concern the law schools have,” said Duke University law professor Erwin Chemerinsky, who joined the suit.
At USC, the protests over the Solomon Amendment have been low-key. “We have had students sign up for an interview with a military recruiter, and they demand to know why the ‘don’t ask, don’t tell’ policy hasn’t been changed,” Spitzer said.
UCLA School of Law Dean Michael Schill said the University of California system had a policy that required giving military recruiters access to campuses. “Even if the Solomon Amendment had been struck down, we would have had our own policy that allowed them to be here,” he said.
Although some faculty and students oppose the Pentagon’s policy, “it has not generated a large amount of controversy in the 18 months that I’ve been here,” he said.
Gay rights advocates said they hoped school officials would make use of their free-speech rights. The court’s opinion “leaves room for students and universities themselves to speak out ... and show their abhorrence of the military’s policy that discriminates against gay and lesbian people,” said Jon Davidson, legal director of Lambda Legal.