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Published in Print: December 14, 2005, as Justices Weigh Colleges’ Right to Limit Military Recruiters

Justices Weigh Colleges’ Right to Limit Military Recruiters

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The U.S. Supreme Court appears inclined to uphold a law that denies federal funding to colleges that do not give military recruiters the same campus access to students that other potential employers get. The justices’ thinking emerged during oral arguments last week in a challenge to the law brought by a group of law schools.

The fate of the law, called the Solomon Amendment, which Congress first passed in 1994 and has expanded several times since, has implications for a provision in the federal No Child Left Behind Act.

The NCLB provision, in addition to requiring that school districts that receive federal money give military recruiters student directory information, also requires that districts “provide military recruiters the same access to secondary school students as is provided generally to postsecondary educational institutions or to prospective employers of those students.”

The case was brought by the Forum for Academic and Institutional Rights Inc., or FAIR, an association of law professors and 38 law schools that oppose the military’s policy of excluding openly gay employees. The law schools are members of the Association of American Law Schools, which requires that its members not discriminate against gay and lesbian students, and also that they admit to on-campus job fairs only those employers that pledge not to discriminate against individuals on the basis of sexual orientation.

Under the “don’t ask, don’t tell” policy enacted by Congress in 1993, the armed forces do not allow openly gay people to serve.

Congress, by using its purse strings to force campuses to let military recruiters in, is interfering with the law schools’ First Amendment rights of free speech and association, argued E. Joshua Rosenkranz, a New York City lawyer representing the schools in the Dec. 6 arguments in Rumsfeld v. FAIR (Case No. 04-1152).

In court papers, the law schools cited the Supreme Court’s 2000 decision in Boy Scouts of America v. Dale, which supported the Boy Scouts’ firing of an openly gay scoutmaster because, the Scouts said, the presence of members who are gay would burden the organization’s message. The law schools argued that their message against employment discrimination is similarly burdened by the presence of military recruiters.

But the Bush administration argued that the recruiters do not pose such a burden because they are not asking to be members in the law schools’ group.

Symbolic Speech?

Solicitor General Paul D. Clement, representing the government, said the Solomon Amendment “allows the military a fair shot to recruit the best and brightest” from the nation’s law schools. He said the law schools “remain free to criticize the military and its policies.” Alternatively, he said, they are “free to refuse federal funds” if they don’t wish to have the recruiters on campus.

Chief Justice John G. Roberts Jr. picked up on that theme, saying that Congress was telling federally funded higher education institutions, “If you want our money, you have to accept our conditions.”

Mr. Rosenkranz’s suggestion that students would not believe a law school’s anti-discrimination policy if military recruiters were participating in the school’s job fairs prompted a quick retort from Chief Justice Roberts.

“The reason they don’t believe you is your willingness to take the [federal] money,” said the chief justice, provoking soft laughter in the courtroom.

Justice David H. Souter seemed sympathetic to the law schools’ position that “the university, by creating the forum for recruiting, [is] speaking.” He characterized the military’s message as “Join the army, but not if you’re gay.”

But several justices were skeptical of Mr. Rosenkranz’s argument that a law school job fair amounted to speech by the school.

Justice Anthony M. Kennedy suggested that the law schools could add disclaimers to e-mails and other literature advertising the job fairs that said they disagreed with the military’s policy.

Justice Stephen G. Breyer took issue with the law schools’ attempt to keep the military out. “The remedy for speech you don’t like is not less speech, it’s more speech,” he said.

The K-12 Context

Thomas Hutton, a lawyer with the National School Boards Association, said he expects the high court to uphold the Solomon Amendment out of deference to Congress and the military. If the court did strike it down, he said it was unclear whether the similar provision in the No Child Left Behind Act would be affected.

“Higher education is a little different from public K-12 schools,” he said. “I’m not sure what particular basis the court would use [to strike down the K-12 requirement]; whether you could import associational expression to the K-12 context, I’m not sure.”

He said the clearer impact of the case “is a political one, that it’s focusing attention on the military recruiters issue” in high schools and how districts administer their responsibilities to give the military access to students and deal with protesters against that access.

A decision in the case is expected by July.

Vol. 25, Issue 15, Page 22

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