May 03, 2005|By David G. Savage | David G. Savage,LOS ANGELES TIMES
WASHINGTON - The Supreme Court agreed yesterday 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 funding and free speech.
A coalition of law schools won an appellate court ruling last year that said their right to free speech includes 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 appellate court 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 accept federal funding, they have 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.
Congress adopted the Pentagon's view in a spending provision, known as the "Solomon amendment" for its chief sponsor, then-Rep. Gerald B.H. Solomon, a New York Republican, that was first attached to a defense authorization bill in 1994 and has been revised several times. It allows the government to cut off federal money to colleges and universities that bar Reserve Officer Training Corps programs from campus or that deny military recruiters "equal access" to students.
Rep. Richard W. Pombo, a California Republican who co-sponsored 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 have adopted a strict policy of nondiscrimination that says, among other things, that on-campus facilities will 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 contend. In their suit, the schools argued that under the First Amendment's protection for free speech, they have a right not to associate with persons or organizations that espouse discriminatory policies - and relied on a recent and controversial Supreme Court precedent for this view.
Five years ago, the justices ruled, 5-4, that the Boy Scouts have a free-speech right not to associate with homosexuals and thus may 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 turns on government funding, not 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 said the Solomon amendment requires colleges and law schools "to give the military the same access to their facilities and students as they choose to give outside employers."
The law schools say they are not opposed to the military recruiting their students. Rather, they say that the schools should not be forced to aid such efforts.
The Supreme Court will hear arguments in the fall in Rumsfeld v. Forum for Academic and Institutional Rights.
The federal law remains in effect while the dispute is being resolved.
The Los Angeles Times is a Tribune Publishing newspaper.
