Court to decide if colleges barring military recruiters risk federal cash

WASHINGTON – In the 1950s and ‘60s, the free speech clashes between universities and the government often involved communism and Vietnam. Now it’s gay rights.

This fight is between 31 law schools and the Pentagon.

The schools want to bar military recruiters to protest the “don’t ask, don’t tell” policy barring openly gay people from serving in the armed forces. The Pentagon says the schools must forfeit federal funding if they keep the recruiters out.

The Supreme Court said Monday it would settle the dispute in its next session, beginning in October.

Universities were hotbeds of dissent during the Vietnam War, and many protests were aimed at the military presence on campuses in the form of ROTC programs for officers.

In the current battle, E. Joshua Rosenkranz, a lawyer representing the law schools suing the Pentagon, contends the government may not force schools to condone its policy by insisting on full access for military recruiters.

“If, as the Supreme Court has held, bigots have a First Amendment right to exclude gays, then certainly universities have a First Amendment right to exclude bigots,” he said.

The Bush administration and its backers contend schools are free to protest the Pentagon’s policy as they wish, so long as they give the military equal access to campuses. Moreover, schools could opt to forgo their federal funding, they said.

At issue is a 1994 federal law requiring universities that receive federal funds to give the military the same access as other recruiters. At some schools, the funding can be hundreds of millions of dollars.

The law, known as the Solomon Amendment, has been controversial for law schools that have nondiscrimination policies barring any recruiter – government or private – from campus if the organization represented unfairly bases hiring on race, gender or sexual orientation.

A panel of the Philadelphia-based 3rd U.S. Circuit Court of Appeals in November blocked the government from enforcing the law pending a full trial, ruling 2-1 that it was “reasonably likely” that the law violated free speech rights.

After Sept. 11, the Pentagon began strictly enforcing the Solomon Amendment. In 2003, Congress amended the Solomon Amendment to require equal access. Since then, law schools have complied while also filing lawsuits challenging the law.