Law schools say it's a question of free speech.
he Supreme Court agreed Monday to decide whether the nation's colleges and universities may bar military recruiters from their campuses without losing federal funding.
The case, to be heard in the fall, poses a clash between government money and free speech.
A coalition of law schools last year won an appellate court ruling that said their right to free speech included the right to refuse to associate with military recruiters. The law schools argued that the Pentagon's policies on gays and lesbians in the military were discriminatory.
If that ruling is allowed to stand, all colleges and universities would have that right.
But the justices voted to take up the Pentagon's claim that because colleges and universities accepted federal funds, they had an obligation to give the military the same right to recruit on campus as other employers.
"Effective recruitment is essential to an all-volunteer military, particularly in a time of war," the government's lawyers said. The Defense Department wants to recruit law school graduates to serve as lawyers or judges in the military.
Congress adopted the Pentagon's view in a spending provision, known as the Solomon amendment for its chief sponsor, then-Rep. Gerald Solomon (R-N.Y.), that was first attached to a defense authorization bill in 1994 and has been revised several times since. It allows the government to cut off money to colleges and universities that bar Reserve Officers' Training Corps programs from campus or that deny military recruiters "equal access" to students on the same basis as other employers.
Rep. Richard W. Pombo (R-Tracy), a cosponsor of the amendment, said lawmakers wanted to "send a message over the wall of the ivory tower of higher education" that their "starry-eyed idealism comes with a price. If they are too good — or too righteous — to treat our nation's military with the respect it deserves, then they may also be too good to receive the generous level of taxpayer dollars presently enjoyed by many institutions of higher education in America."
Two years ago, a coalition of 31 law schools and law school faculties — including Georgetown, Stanford and New York universities — challenged the law as unconstitutional. They noted that since 1990, most of the nation's law schools had adopted a strict policy of nondiscrimination that said, among other things, that on-campus facilities would not be available to employers who "discriminate on the basis of race, color, religion, national origin, sex, handicap or disability, age or sexual orientation."
And because it does not allow gays and lesbians to serve openly, the Pentagon's "don't ask, don't tell" policy is discriminatory, the schools contended.
In their suit, the law schools argue that under the 1st Amendment's protection for free speech, they have a right not to associate with persons or organizations that espouse discriminatory policies — and they are relying on a recent and controversial Supreme Court precedent for this view.
Five years ago, the justices ruled 5 to 4 that the Boy Scouts had a free-speech right not to associate with homosexuals and thus could exclude from their ranks an openly gay scoutmaster from New Jersey. Chief Justice William H. Rehnquist, the author of the opinion, said the Scouts' free-speech right of "expressive association" trumped a New Jersey law that prohibited discrimination against gays.
The same is true in the military recruiting case, the U.S. 3rd Circuit Court of Appeals in Philadelphia said last year.
"Just as the Boy Scouts believed that homosexual conduct is inconsistent with the Scout oath, the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness," the appeals court said in a 2-1 decision.
Bush administration lawyers appealed to the Supreme Court on behalf of Defense Secretary Donald H. Rumsfeld. They said the case turned on government money, not on the free speech of private organizations.
"If institutions do not wish to associate with military recruiters or their speech, they may decline to associate with the federal funding," said acting Solicitor General Paul Clement. "Institutions that voluntarily accept federal funding remain free to protest the military's policies and to make clear that they do not agree with them."
He added, however, that the Solomon amendment required colleges and law schools "to give the military the same access to their facilities and students as they choose to give outside employers."
For their part, the law schools say they are not opposed to the military recruiting their students. Rather, they should not be forced to aid its efforts.
"This is not a question of barring them at the gate," said Sharon Frase, a Philadelphia lawyer who has worked on the suit. "They don't want to affirmatively help them by posting job announcements and arranging interviews. They are saying, 'You can recruit, but we're not going to help you.' "
After the appellate court ruling, Harvard and Yale universities reimposed restrictions on military recruiters at their law schools. Most others, including USC, have taken a more cautious approach, providing the recruiters with regular access to their students while awaiting clarification of the ruling.
USC Law School Dean Matthew L. Spitzer said that would continue to be the case. "This doesn't change our situation at all for the moment," he said. "We'll wait for the Supreme Court to make a decision."
In 2002, the university's law school granted official access to the recruiters after it was warned that USC risked losing almost $300 million in federal funding — about 21% of its operating budget — if it did not.
The Supreme Court will hear arguments in the fall in the case of Rumsfeld vs. Forum for Academic and Institutional Rights.
By David G. Savage Times Staff Writer May 3, 2005 WASHINGTON Times staff writer Rebecca Trounson in Los Angeles contributed to this report.