News stories from the Gay People's Chronicle

May 6, 2005

Supreme Court to decide if law schools can bar military recruiters

by Bob Roehr

Washington, D.C.--The U.S. Supreme Court will decide if the federal government can force law schools to help military recruiters on campus or lose federal funding.

The schools arguey that is a violation of their freedom of speech and their nondiscrimination rules, which include gays and lesbians. Lastfall, a federal appeals court agreed.

The high court said on May 2 that it would hear the appeal of Rumsfeld v. Forum for Academic and Institutional Rights during its session that begins next October. A decision is likely in the spring of 2006.

The issue has been bubbling for almost a generation. FAIR, a group of 25 law schools and other organizations, argued that law schools historically have had nondiscrimination ?policies and over the years have extended them to include sexual orientation. In 1990 the American Association of Law Schools unanimously voted to add sexual orientation as a protected category. Today all but a handful of schools do so.

Since the Pentagon?s ?don?t ask, don?t tell? policy discriminates against gays and lesbians in employment, the law schools said they would bar military recruiters from campus.

A backlash began in 1994 when Rep. Gerald Solomon, R-N.Y., offered the first in a series of amendments, which became a law forcing colleges and universities to help military recruiters or lose access to all government-funded programs, including student loans.

FAIR sued to block the law. The third Circuit Court of Appeals in Philadelphia agreed with their arguments. Writing for the 2-1 majority, Judge Thomas L. Ambro drew heavily upon two Supreme Court decisions that at the time were seen as defeats for gay equal rights advocates.

One case is 2000?s Boy Scouts of America v. Dale, where the high court said that the Scouts did not have to allow openly gay members and scoutmasters because it would ?significantly burden the Boy Scouts? desire to not promote homosexual conduct as a legitimate form of behavior.??

Ambro applied that same logic to this case, writing, ?The law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness? and should not be compelled to accept military recruiters.

The other case cited extensively was Hurley, a 1995 ruling which the New York City St. Patrick?s Day parade was allowed to exclude a gay Irish group from marching with a banner. The court found that the parade organizers had a right to associate with whom they chose.

Ambro called the Solomon Amendment an unjustifiably blunt weapon to assist the recruitment effort; ?it could barely be tailored more broadly.? The Pentagon has other less intrusive and burdensome methods by which to recruit lawyers.

Furthermore, Ambro wrote, ?The government has failed to proffer a shred of evidence that the Solomon Amendment materially enhances its stated goal.? It may plausibly be argued that it has generated such ill will that it ?actually impedes recruitment.?

The U.S. House of Representatives reacted by passing a ?sense of Congress? resolution in February. It reaffirmed the Solomon Amendment and urged an appeal to the Supreme Court, though t had no binding legal power. The vote was 327 to 84, with strong Democratic support.

While not a party to the FAIR lawsuit, the Servicemembers Legal Defense Network filed a brief in support of their position during the Philadelphia appeal. They are likely to do so again now that the matter is before the Supreme Court.

?We agree that our armed forces should recruit the best and brightest Americans for service to our country,? said SLDN legal director Sharra E. Greer. ?The best and brightest, however, include lesbian, gay, bisexual and transgender students, too. Military leaders who want to recruit our nation?s most accomplished students should be the first in line to call for repeal of ?don?t ask, don?t tell?.?

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