 | | 11-30-2004, 12:55 AM |
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| Courts Allow Schools to Ban Military Recruiters
Quote:
]Court Allows Universities to Bar Military Recruiters
By ADAM LIPTAK
Published: November 29, 2004
Universities may bar military recruiters from their campuses without risking the loss of federal money, a federal appeals court in Philadelphia ruled today.
The suit was brought by an association of law schools and a group representing hundreds of legal scholars seeking to help universities and colleges that want to keep military recruiters off their campuses because they object to the Defense Department's policy of excluding gay men and lesbians from military service.
A 1995 law, known as the Solomon Amendment, bars the federal government from disbursing money to colleges and universities that obstruct campus recruiting by the military. As amended and interpreted over the years, the law prohibits disbursements to all parts of a university, including its physics department and medical school, if any of its units, like its law school, make military recruiting even a little more difficult.
Billions of dollars are at stake, and no university has been willing to defy the government. Indeed, several of the law schools that are members of the Forum for Academic and Institutional Rights, the group that sued to block the new law, have not been publicly identified.
Among the institutions willing to be named are the law schools of New York University and George Washington University. The law faculties of Stanford, Georgetown and several other law schools are also members of the group.
E. Joshua Rosenkranz, who represents the plaintiffs in the suit, said the reluctance of several of his law school clients to be identified publicly was driven by fear.
"They don't want retribution that is exacted behind closed doors by faceless bureaucrats and vindictive politicians," Mr. Rosenkranz said.
The 2-to-1 decision in Philadelphia today, by the United States Court of Appeals for the Third Circuit, said the law violates the schools' First Amendment rights in two ways.
Citing a 2000 decision of the United States Supreme Court that said the Boy Scouts have a First Amendment right to exclude gay scoutmasters, the appeals court said the law schools have a First Amendment right to convey a message opposing discrimination against gays by excluding military recruiters.
The appeals court also said that the presence of military recruiters on campus forces universities to convey a message with which they disagree. That is a form of compelled speech, the court said, prohibited by the First Amendment.
The dissenting judge said that the majority had not given enough weight to the importance of unfettered military recruiting, adding that the law does not stop schools from criticizing the military's policies and so does not violate the First Amendment.
A spokesman for the Justice Department, Mark Corallo, said, "The department is reviewing the decision and will determine what action we will take after a thorough review." The government can ask the full appeals court to review the three-judge panel's decision or ask the Supreme Court to hear the case. In either case, the government may also ask for a stay of the decision.
In the meantime, Mr. Rosenkranz said, colleges and universities are free to limit military recruiters' access to their campuses.
"Now every academic institution in the country is free to follow their consciences and their nondiscrimination policies," Mr. Rosenkranz said. "Enlightened institutions have a First Amendment right to exclude bigots. In a free society, the government cannot co-opt private institutions to issue the government's message."
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