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Boards May Bar Recruiters, N.Y. Court Rules

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School boards in New York State may bar military recruiters from schools if they also bar other employers who have explicit policies of discrimination against homosexuals, the state's highest court ruled last week.

Overturning two lower courts, the New York Court of Appeals ruled that a Rochester school board resolution barring recruiters because of a U.S. Defense Department policy against homosexuals does not clash with a 1984 state law guaranteeing the military "equal access'' to public schools.

The ruling and the board resolution addressed the Pentagon's previous strict policy against homosexuals in uniform. But Rochester school officials said they did not feel the legal issues involved had changed as a result of the so-called "don't ask, don't tell, don't pursue'' policy adopted by the Clinton Administration last year.

The 6-to-1 decision this month was hailed by proponents of school board authority and by gay-rights advocates.

"This case basically is about the right of the school district to control access to its property,'' said Louis Grumet, the executive director of the New York State School Boards Association.

"If antidiscrimination policies are supposed to mean something, then you have to be able to enforce them,'' said Mr. Grumet, adding that he expects more school boards to adopt such recruitment bans.

Evan Wolfson, a senior staff lawyer with the Lambda Legal Defense and Education Fund, a New York City-based gay-rights group, said the decision "gives a green light'' to districts to take a stand against the military's policy toward homosexuals.

But opponents of the Rochester policy argued that school boards are straying too far into political advocacy when they adopt recruiting bans to protest restrictions on homosexuals in the military.

That issue "is for Congress to decide, not the Rochester school board,'' said William E. Fay 3rd, the lawyer for Parents for the Restoration of Values in Education, a New York City group that filed a brief opposing the recruitment ban.

Rochester board members "are arrogating to themselves a tremendous amount of political promotion of the gay lifestyle,'' Mr. Fay said.

Challenged by Parent

The Rochester board adopted a policy in 1991 that states that no organization may recruit in the district's schools if it has a "stated policy'' which discriminates on the basis of sexual orientation, race, religion, or other factors.

The board's policy further requires high schools to tell students annually of the military's policy toward homosexuals.

The military policy was modified by President Clinton to allow homosexuals to serve if they do not engage in homosexual conduct and if they keep silent about their orientation. But the new policy, since codified by Congress, still allows the military to remove gay service members in some circumstances.

A Rochester parent, Jean M. Lloyd, challenged the board's policy on behalf of her son, then in high school. She argued that the policy was in direct conflict with the 1984 law mandating that military recruiters have access to schools "on the same basis'' as other potential employers. A state trial court and an appellate court ruled in her favor.

But the Court of Appeals held in the case, Lloyd v. Grella, that the Rochester policy does treat the military on the same basis as other employers, since it bans all groups with a stated policy of discrimination against homosexuals.

"The military may recruit on Rochester school grounds 'on the same basis' as any other employer when it conforms to the nondiscriminatory practices and polices applicable to all recruiters,'' said the majority decision by Judge Joseph W. Bellacosa.

No Appeal Likely

In a dissent, Judge Richard D. Simons said the board's policy was not a neutral ban on discrimination but was targeted at the military ban against homosexuals.

"The board decided to discriminate against the military because it disagreed with a military policy enacted by Congress,'' he wrote.

John M. Regan, the lawyer for Ms. Lloyd, said the Court of Appeals majority was "pretending the [state] law isn't there, and they are interpreting it out of existence because they favor the homosexual-rights agenda.''

There will be no appeal to the U.S. Supreme Court, he said, because the case does not involve federal law or the U.S. Constitution.

Lieut. Col. Doug Hart, a spokesman for the Pentagon, said the Defense Department was not overly concerned about the decision because the military recruits only in high schools where it is welcome.

"If this turned into a trend, we would be more concerned,'' he said. "There are other ways to reach high school students.''

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