WASHINGTON – The Supreme Court confronts a gay-rights issue this week in a case that asks whether law schools can bar military recruiters because of the Pentagon’s “don’t ask, don’t tell” policy.
Each fall, recruiters of all types jam law schools seeking top students at job fairs, receptions and interview sessions.
Justices will decide whether universities that accept government money must accommodate the military even if the schools forbid the participation of recruiters from public agencies and private companies that have discriminatory policies.
It is the first time the court has dealt with a gay-rights-related case since a contentious 2003 ruling that struck down laws criminalizing gay sex. In 2000, the court ruled that the Boy Scouts have the right to ban leaders who are openly gay.
The latest appeal pits the Pentagon against a group of law schools and professors. The justices will hear arguments Tuesday.
The government contends that if it provides financial support to a college – with grants for research, for example – then, in exchange, it should be able to recruit “the very students whose education it has supported.” In this case, that means having the ability to recruit students, a tool made more essential since the Sept. 11, 2001, terrorist attacks.
Federal financial support of colleges tops $35 billion a year.
Law schools say they would welcome military recruiters if the Pentagon drops its policy against openly gay personnel. Gay men and women may serve only if they keep their sexual orientation to themselves.
The outcome turns on the First Amendment and whether schools can be made to associate with military recruiters or promote their appearances on campus.
“Part of the cultural meaning of the case is bound up in questions about gay rights,” said Cornell Law School professor Trevor Morrison, a former clerk to Justice Ruth Bader Ginsburg. “Indirectly, it’s about the ‘don’t ask, don’t tell’ policy.”
The Supreme Court often splits 5-4 in free-speech cases, so it is hard to predict the outcome as well as how the impending retirement of Justice Sandra Day O’Connor might affect the case.
If Samuel Alito, President Bush’s nominee to succeed O’Connor, is confirmed by the Senate before the case is decided, Alito could be called on to break any tie vote. The ruling likely will take months to complete.
The case is Rumsfeld v. Forum for Academic and Institutional Rights, 04-1152.