Justices seem receptive to recruiting on campus

Most on court appear unsympathetic with schools' basing their resistance on opposition to `don't ask, don't tell' policy


WASHINGTON -- Most Supreme Court justices appeared sympathetic yesterday with arguments that colleges and law schools must allow military recruiters onto their campuses to talk to students, even if the schools oppose the military's "don't ask, don't tell" policy of excluding openly gay people.

Taking up a case that pits the government's efforts to maintain an all-volunteer military against the free-speech claims of law schools, colleges and universities, a majority of the justices seemed to be on the government's side. They suggested they saw no constitutional problems with a federal law that requires schools to welcome military recruiters if the institutions accept government money and allow private employers to recruit.

"It doesn't insist that you do anything. It says that if you want our money, you have to let our recruiters on campus," Chief Justice John G. Roberts Jr. said.

The case has drawn significant attention as an intersection of two hotly debated subjects, military recruiting and gay rights. As the war in Iraq has drawn out, the military felt pressure to recruit ever more actively, sometimes against the wishes of parents, and at times has failed to meets its recruiting targets. At the same time, gay rights, especially the question of gay marriage, has engaged the courts, state legislatures and Congress.

Given that backdrop, the notion of liberal colleges whose allegiance to gay rights is interfering with military recruiting could hardly be anything but a cultural flash point.

The military actively recruits on college campuses, and a Bush administration lawyer stressed during arguments yesterday that a ruling against the government could encourage a university to put the brakes on recruiting if it disagreed with other government policies, including the military's treatment of women or even the war in Iraq.

"The free speech interests that are articulated on the other side would extend to any basis for criticizing the military, whether it was not liking the war in Iraq, the war in Afghanistan or the discriminatory hiring policies," said Paul Clement, the solicitor general. He also argued that the law does not interfere with the schools' free-speech rights because it applies only if the institutions choose to receive federal funding.

E. Joshua Rosenkranz, a lawyer for New York University and other schools, argued that the federal law was unconstitutional because it forced educational institutions to condone the military's policy on gays, even though it runs afoul of the schools' policies prohibiting discrimination based on sexual orientation.

He said the law violates the schools' free-speech rights because it requires them to help spread the military's message, which suggests that the schools support it.

"This is a refusal to disseminate the messages of the military recruiters. It is a refusal to send e-mails, post bulletins and make arrangements for mutual exchange of ideas," Rosenkranz said of the schools' position.

Some educational leaders also argue that many universities receive hundreds of millions of dollars from the federal government, for research and other uses, that have become a basic part of their budgets and cannot be given up. So portraying the schools' choice as voluntary, or the government's action as anything but coercive, is unfair.

A Philadelphia-based federal appeals court sided with the schools last year. It blocked enforcement of the law, which is referred to as the Solomon Amendment after its sponsor, the late Rep. Gerald Solomon, a New York Republican. The appeals court said the law illegally conditioned funding on whether the schools supported the military's message.

But several justices were openly skeptical of arguments that students could assume the schools supported "don't ask, don't tell" if they allowed military recruiters on campus.

"Nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment," Roberts told Rosenkranz. "Everybody knows that those are the employers. Nobody thinks the law school believes everything that the employers are doing or saying."

Rosenkranz responded that the schools in fact have a contrary message: "They believe it is immoral to abet discrimination."

"But they can say that to every student who enters the room," said Justice Sandra Day O'Connor.

Responded Rosenkranz: "And when they do it, your honor, the answer of the students is, `We don't believe you.'"

"The reason they don't believe you is because you're willing to take the money," Roberts said. "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.'"

Jan Crawford Greenburg writes for the Chicago Tribune.

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