TV & Radio
A Victory For Military Recruiters
Schools Must Give Access Despite Objection to Policy On Gays, Justices Say
By Fred Barbash and Lois Romano
Washington Post Staff Writers
Tuesday, March 7, 2006; A01
The Supreme Court yesterday unanimously upheld a federal law that forces colleges and universities to permit military recruiting on campus, despite the schools' objections to the Pentagon ban on openly gay people serving in the armed forces.
By a vote of 8 to 0, the court upheld the Solomon Amendment, which permits the denial of federal funding to schools that do not allow military recruiters the same access given to all other job recruiters. But in ruling that schools must provide the military the same access to students as they would for any other recruiters, the justices noted that schools are still free to protest their presence on campus.
The Forum for Academic and Institutional Rights (FAIR) -- a coalition of law schools and professors that formed to sue the government -- had said the law "compelled speech" that made it appear schools were endorsing the government's exclusion of acknowledged gays in the military, thus violating the schools' right to free speech under the First Amendment.
But in writing for the court, Chief Justice John G. Roberts Jr. said that Solomon "neither limits what law schools may say nor requires them to say anything."
"Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy. . . . Nothing about recruiting suggests that law schools agree with any speech by recruiters and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies," Roberts wrote.
Justice Samuel A. Alito Jr., the newest member of the court, did not take part in the case.
Though a federal district court had sided with the government, an appeals court in Philadelphia reversed that decision, ruling in favor of FAIR last year and blocking enforcement of Solomon. But yesterday's Supreme Court opinion rejected each argument that had been advanced on FAIR's behalf.
"In this case, FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect," Roberts wrote.
So thorough was the court's rejection of FAIR's arguments that it ruled Congress could have achieved equal access not only indirectly, by threatening a funding cutoff, but also directly, through legislation based on its constitutional power to raise military forces. In fact, the court suggested in passing, even colleges and universities that do not receive any federal funding could be compelled by Congress to allow military recruiters.
"Congress's power in this area is broad and sweeping," Roberts wrote, "and there is no dispute in this cases that it includes the authority to require campus access to military recruiters."
So far, however, the government has chosen the more indirect approach of the Solomon Amendment. With yesterday's decision, many universities will now have to choose between their law schools' anti-discrimination principles and their dependence on federal money.
Most schools have made it clear that they could not afford to lose federal aid, which totals about $35 billion a year. Only a few schools -- including the law schools of New York University and George Washington University -- allowed their names to be publicly attached to the lawsuit.
Geoffrey Shields, dean of Vermont Law School, told the Associated Press yesterday that since 1999 his school has given up some federal money and will continue to bar recruiters "as a symbol of the importance of fair treatment of all people."
"We've stuck to our guns, and I anticipate we'll continue to stick to our guns," he said.
Sen. John Cornyn (R-Tex.), who had called the appellate court's decision in favor of FAIR an "insult" to the military, said in a statement yesterday that "this decision will ensure that the military will continue to be comprised of our nation's finest -- men and women who know how to defend our country in a manner consistent with our values and principles."
Supporters of FAIR took solace in passages of the opinion that noted students and others would still be free to protest military recruiters. Tensions between Congress and academia over university efforts to restrict military recruitment date to the Vietnam War and campus protests against it.
"The court affirmed the idea of a vigorous public forum and that's what's refreshing," said Michael Tigar, a law professor at American University and an opponent of Solomon. "The opinion sounds these First Amendment themes. The message is: If you don't like something, there is always more speech."
Joshua Rosencranz, a New York lawyer who represented FAIR in the case, said the schools always saw the suit as a "scrimmage in a broader war" about equality.
"We brought the suit in part because there are those saying 'How dare you let protesters on campus when the recruiters were there?' " he said. "Well, this opinion makes clear that those rights are still in tact. It forced the government to state what the line was."
Attaching various strings to federal funding is itself standard practice, used most famously to secure equal treatment for women in athletic programs. It's been upheld by the courts in part because the educational institutions are free to reject the money if they object to the strings.
The decision, while closely watched, was unsurprising after the oral arguments in the case, during which the justices expressed great skepticism about equating the recruiting with protected expression. Roberts wrote that although the court held in 1977 that New Hampshire motorists cannot be compelled to display the state motto -- "Live Free or Die" -- on license plates, in this case the government "does not require any similar expression by law schools" and "does not dictate the content of speech at all."
"Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah's Witness to display the motto 'Live Free or Die,' " Roberts wrote.
Staff writer Charles Lane contributed to this report.