High court sides with military
WASHINGTON – The Supreme Court said Monday that Congress isn’t trampling free speech by threatening to withhold federal funding from universities that kick military recruiters off campus because the Pentagon’s “don’t ask, don’t tell” policy on gays conflicts with the schools’ anti-discrimination practices.
In a unanimous 8-0 ruling, the justices said Congress isn’t stopping the universities from protesting the policy nor is it asking the schools to endorse the policy by granting military recruiters the same access they give other employers.
Congress’ Solomon Amendment merely seeks to regulate what universities “must do – afford equal access to military recruiters – not what they may or may not say,” Chief Justice John G. Roberts wrote for the court.
The ruling is a big boost to the military and a blow to 36 law schools that joined forces to fight what they described as overreaching by Congress. The schools now face a choice: Grant military recruiters full access to their campuses or forfeit what in some cases is hundreds of millions of dollars.
“This is a skirmish in a much bigger war about equality and human dignity. That’s a war we’re winning.” said E. Joshua Rosenkranz, attorney for the schools.
The case ends a dispute that dates back decades but intensified in 2002 when lawmakers eager to boost military recruiting in the wake of the Sept. 11, 2001, terrorist attacks got tough on universities.
In essence, Congress tied federal funding for universities to the hospitality they extend to military recruiters. Schools that treated the military like other employers would get federal money; those that chose to express their displeasure with the military’s policy on gays by sending recruiters off campus or denying them the kind of reception that other employers received would have to forfeit their funds.
Since 1994, the military’s policy of “don’t ask, don’t tell” has allowed gay men and women to serve in the armed forces as long as they don’t disclose their sexual preference or perform blatant homosexual acts in public.
Many law schools have stringent anti-discrimination policies that include protection for homosexuals, and they give the same chilly welcome to recruiters from all employers that they feel discriminate.
A group of law schools objected to the new rules, saying Congress’ edict was a violation of their free speech rights. They argued that the rules not only slapped down their protest but also forced them to “associate” with the military’s message by facilitating its recruitment efforts.
A federal District Court rejected their arguments, but the 3rd U.S. Circuit Court of Appeals in Philadelphia sided with the schools, saying Congress’ action likely was unconstitutional.
“The Solomon Amendment neither limits what law schools may say nor requires them to say anything,” Roberts wrote. “Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds.”