The Supreme Court has affirmed a law that halts federal financing to universities that do not give military recruiters equal access to students that other employers receive.
The law, passed in 2004, puts millions of dollars at stake for schools that continue to turn away military recruiters.
The coalition of law schools and professors that brought the suit said the law infringes on their right to protest the U.S. military’s “don’t ask, don’t tell” policy, which bans open homosexuals from serving in the military.
The case came before the Supreme Court after an appeals court in Philadelphia had ruled in favor of the law schools, suspending enforcement of the rule.
In a unanimous opinion issued Mar. 6 by Chief Justice John G. Roberts, the Supreme Court ruled that the right to protest the military’s policy toward homosexuals was not infringed upon by the law, known as the Solomon Amendment.
The amendment “neither limits what the laws schools may say nor requires them to say anything,” Roberts said in the decision, rejecting the universities’ argument that having to allow military recruiters equal access was a form of constitutionally-prohibited forced speech.
Carl C. Monk, executive director of the Forum for Academic and Institutional Rights, the group that filed the suit, told the New York Times that its members will still be required to actively oppose Solomon.
Leading up to the Supreme Court ruling, seven universities supported the law schools in a 30-page brief which held that the government’s position was “incorrect as a matter of law, and, if adopted by the [Supreme Court], would threaten grave damage to the nation’s institutions of higher education.”
Roberts, however, said that FAIR had “attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect.”
He also rejected an argument by law professors at Columbia and Harvard universities that schools can comply with the law by barring all employers from their campuses. Such an interpretation was not the intent of Congress, Roberts said.
Mark Graber, a law professor at the University of Maryland, disagreed with the court, pointing out that other employers who discriminate against gays and lesbians lose access to students. As members of the Association of American Law Schools, the schools in the lawsuit must uphold a nondiscrimination policy toward gays and lesbians.
“Military recruiters weren’t asking for the same rights,” Graber said in a telephone interview. “They were asking for special treatment.”
Despite the setback for the law school association, some saw a silver lining in the court’s ruling.
Joshua Rosencranz, who represented FAIR in the suit, saw the decision as part of a larger effort to promote equality and free speech.
“We brought the suit in part because there are those saying, ‘How dare you let protesters on campus when the recruiters were there?'” he said, according to the Washington Post. “This opinion makes clear that those rights are still intact. It forced the government to state what the line was.”
This article appeared in the March 9, 2006 issue of the Hatchet.