COUNTERING MILITARY RECRUITMENT
Articles: Military Recruiting: Student Privacy
Supreme Court Upholds Campus Military Recruiting
David Stout, New York Times
March 6, 2006
WASHINGTON, March 6 — The Supreme Court ruled today, 8 to 0, that colleges and universities that accept federal money must allow military recruiters on campus, even if people in the academic community deplore the Pentagon's "don't ask, don't tell" policy on gay people.Ending a decade-long battle in favor of the Defense Department, the court rejected the argument of law school faculty members that being forced to associate with military recruiters violated their First Amendment rights to free speech and association.
"Law schools 'associate' with military recruiters in the sense that they interact with them, but recruiters are not part of the school," Chief Justice John G. Roberts Jr. wrote for the court. "Students and faculty are free to associate to voice their disapproval of the military's message."
At issue in the case of Rumsfeld v. Forum for Academic and Institutional Rights, or FAIR, No. 04-1152, is the Solomon Amendment, which withholds federal grants from universities that do not open their doors to military recruiters "in a manner at least equal in quality and scope" to the access offered civilian recruiters.
The American Association of Law Schools has long required its members to insist that prospective employers agree to a policy of nondiscrimination on grounds that include sexual orientation. The association's stand set the stage for a conflict with the military and its "don't ask, don't tell" policy.
Some law schools tried to comply with the Solomon Amendment by half-measures, relegating military recruiters to off-campus locations. But Congress specified in 2004 that mere access for military recruiters is not enough; it demanded equal access.
Although law schools became the centers of campus resistance, the entire colleges and universities stood to lose if they ran afoul of the Solomon Amendment. The federal money at stake comes from a wide range of agencies and for a wide variety of uses. Funds for student financial assistance are not covered.
When the case was argued before the Supreme Court on Dec. 6, Chief Justice Roberts zeroed in on the universities' apparent desire to have it both ways — to show disapproval of the military's treatment of gay people but still leave the federal money spigots open.
"What you're saying is, this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million," the chief justice told a university lawyer.
In his opinion today, Chief Justice Roberts soundly rejected FAIR's assertion that the Solomon Amendment infringed on First Amendment free-speech rights.
"The Solomon Amendment neither limits what law schools may say nor requires them to say anything," he wrote. "Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds."
The Solomon Amendment pertains to conduct more than to speech, the chief justice wrote: "It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say."
Chief Justice Roberts rejected the law schools' contention that teachers and students might equate the granting of access to recruiters to an endorsement of the military's views. He noted that previous Supreme Court rulings have recognized that high school students can appreciate the difference between speech that a school sponsors and speech that a school merely permits because it is required to do so under equal-access policies. "Surely students have not lost that ability by the time they get to law school," he wrote.
Today's decision, in which Justice Samuel A. Alito Jr. took no part because he joined the court after the case was heard, overturned a ruling by the United States Court of Appeals for the Third Circuit, which had found in favor of FAIR.
Representative Gerald B.H. Solomon, a conservative Republican from upstate New York who was a tireless supporter of the military in his 20 years in the House, would surely have been pleased at today's outcome.
A former marine, Mr. Solomon led crusades to punish flag burners and draft dodgers. He was also an ardent opponent of gun control, so much so that in 1996 he challenged Representative Patrick Kennedy of Rhode Island to "step outside" to settle a dispute over a proposal to outlaw assault weapons. Mr. Solomon, who retired in 1998, died at his Glens Falls home in 2001 at the age of 71.
• Copyright 2006The New York Times Company
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