The Supreme Court agreed on Monday to consider whether the government can withhold federal funds from colleges that bar military recruiters, wading into a dispute over campus free speech rights.
The justices will review in their next term beginning in October a ruling allowing law schools to restrict recruiters as a way of protesting the Pentagon’s “don’t ask, don’t tell” policy excluding openly gay people from military service.
The case sets up a free speech fight over schools’ rights of association and the government’s need to promote an effective military in time of war. It’s a dispute that has resonated on college campuses since at least the 1950s during Sen. Joseph McCarthy’s anti-communism crusade. At that time, left-leaning professors were forced to sign loyalty oaths to the United States or be fired.
During the Vietnam War, the presence of ROTC programs on some campuses prompted protests, with opponents seeing them as representatives of a wrongheaded foreign policy and the Pentagon as an institution incompatible with free thought and expression.
Now the debate involves the Pentagon’s desire to recruit military lawyers on campuses.
“The military services depend significantly on campus access to recruit the lawyers they need to carry out their missions,” Bush administration lawyer Paul Clement wrote in filings with the court.
But E. Joshua Rosenkranz, a lawyer representing 31 law schools suing the Pentagon, contends the government may not force schools to accept its discriminatory policy by linking military recruitment to federal research money.
“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.
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 particularly 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.
In its decision, the 3rd Circuit cited a 2000 Supreme Court ruling by Chief Justice William H. Rehnquist that let the Boy Scouts exclude gay scoutmasters. Just as the Scouts have a right to exclude gays based on a First Amendment right of expression, so too may law schools bar groups they consider discriminatory, the court said.
In February, the House passed a nonbinding resolution on a 327-84 vote that expressed support for the law, which also denies defense-related funding to universities that don’t provide ROTC programs. Recruiters for that program are separate from those the Pentagon sends to attract lawyers.
The Bush administration and its backers contend the law does not violate free speech rights because schools are free to protest the Pentagon’s policy as they wish, so long as they give the military equal access as others to campuses. Moreover, schools could opt to forgo their federal funding, they said.
When the Solomon Amendment was passed in 1994, many law schools gave military recruiters limited access. Harvard allowed the military on campus but declined to volunteer its career placement staff to arrange interviews. The University of Southern California, meanwhile, allowed recruiters to interview but didn’t invite them to school-sponsored job fairs off campus.
But after the Sept. 11 attacks, the Pentagon began strictly enforcing the measure. In the summer of 2003, Congress amended the Solomon Amendment to require equal access.
Since then, law schools have grudgingly complied but also filed lawsuits challenging the law. Earlier this year, a U.S. district judge in Bridgeport, Conn., ruled Yale Law School had a right to bar military recruiters from its job interview program, and similar cases were pending elsewhere.
The law schools have formed a coalition called the Forum for Academic and Institutional Rights. Among the supporters of the Bush administration’s appeal is the Mountain States Legal Foundation, a conservative legal group.
The case is Rumsfeld v. Forum for Academic and Institutional Rights, 04-1152.