Story Published:
Mar 6, 2006 at 1:31 PM PDT
Story Updated:
Aug 31, 2006 at 2:14 AM PDT
WASHINGTON, D.C. - The Supreme Court ruled unanimously Monday
that the government can force colleges to open their campuses to
military recruiters despite university objections to the Pentagon's
"don't ask, don't tell" policy on gays.
Justices rejected a free-speech challenge from law schools and
professors who claimed they should not have to associate with
military recruiters or promote their campus appearances.
The decision was a setback for universities that had become the
latest battleground over the military policy allowing gay men and
women to serve only if they keep their sexual orientation to
themselves.
The ruling does not, however, answer broader questions about the
policy itself. Challenges are pending in courts in Boston and Los
Angeles that could eventually reach the high court.
Justices seemed swayed by the Bush administration's arguments
that after the terrorist attacks, and during the war in Iraq, the
government had a responsibility to bolster its recruitment.
Chief Justice John Roberts said that campus visits are an
effective recruiting tool. And, he said, "a military recruiter's
mere presence on campus does not violate a law school's right to
associate, regardless of how repugnant the law school considers the
recruiter's message."
The 8-0 decision upheld a federal law that says universities
must give the military the same access as other recruiters or
forfeit federal money.
Justices ruled even more broadly, saying that Congress could
directly demand military access on campus without linking the
requirement to federal money.
"When you're in the middle of war, even if it's not a terribly
popular one, courts are hesitant to tie the hands of the
military," said Jon Davidson, legal director of gay rights group
Lambda Legal.
Jay Sekulow, chief counsel for the American Center for Law and
Justice, called the decision "an important victory for the
military and ultimately for our national security."
The military's policy had put college leaders in a thorny
situation because of campus rules that forbid participation of
recruiters representing agencies or private companies that have
discriminatory policies.
Most college leaders have said they could not afford to lose
federal help, some $35 billion a year.
Roberts, writing his third decision since joining the court last
fall, said there are other less drastic options for protesting the
policy. "Students and faculty are free to associate to voice their
disapproval of the military's message," he wrote.
Joshua Rosenkranz, the attorney for the challengers of the law,
said that the case called attention to the military policy. "A
silver lining to the Supreme Court's opinion is the court made it
clear," he said, "law schools are free to organize protests."
Geoffrey Shields, dean of Vermont Law School, said the school
since 1999 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.
Roberts' decision carefully sidestepped taking a stand on the
policy itself, although he explained in a footnote that under don't
ask, don't tell, "a person generally may not serve in the Armed
Forces if he has engaged in homosexual acts, stated that he is a
homosexual, or married a person of the same sex."
The court roundly rejected arguments that the policy raised
important First Amendment free-speech issues for school leaders.
"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.
Roberts filed the only opinion, which was joined by every
justice but Samuel Alito. Alito did not participate because he was
not on the bench when the case was argued three months ago.
Congress passed the law, known as the Solomon Amendment after
its first congressional sponsor, in 1994 - the same year that the
"don't ask, don't tell" law took effect. Since then, an estimated
10,000 people have been discharged.
Air Force Lt. Col. Ellen Krenke, a Pentagon spokeswoman, said
Monday that "equal access to law school, and all schools for that
matter, for our recruiters is crucial to ensuring we attract a
diverse and highly qualified pool of applicants."
"The Solomon Amendment neither limits what law schools may say
nor requires them to say anything," the chief justice said.
The case is Rumsfeld v. Forum for Academic and Institutional
Rights, 04-1152.