March 10, 2006

Colleges must allow recruiters
or lose money

Schools can?t keep military out for breaking LGBT equality rules, Supreme Court says

by Eric Resnick

Washington, D.C.--The nation?s highest court says universities must forego their federal funds if they keep military recruiters off campus in protest of ?don?t ask, don?t tell.?

In a unanimous decision handed down March 6, the U.S. Supreme Court said that Congress? requirement that schools give the military the same access as nonmilitary recruiters does not violate the schools? freedoms of speech and association. The court overturned a Third Circuit Court of Appeals ruling.

A coalition of 25 law schools, gay and lesbian student groups and individuals, led by the Yale Law School, had challenged the constitutionality of a 1994 law cutting off all federal funding, including student financial aid, to schools that do not welcome military recruiters. The case is Rumsfeld v. Forum for Academic and Institutional Rights.

In 1990, the American Association of Law Schools voted unanimously to include sexual orientation as a protected category. Its members require prospective employers to sign pledges that they don?t discriminate by sexual orientation, and withhold career placement services from employers who discriminate.

The 1994 law, known as the Solomon Amendment, was expanded in 1997 and 1999, each time restricting more types of federal funding.

In 2001 the Bush administration went further, saying that schools also had to help to promote recruiters on campus, as well as providing space and other accommodations. Congress enacted that rule into law that year, in a defense authorization act shortly after September 11.

The schools sued in 2003 and lost in federal district court. They promptly appealed to the Third Circuit, which reversed the district court with a 2-1 decision in November 2004.

That decision held the law unconstitutional, saying it ?conditions funding on a basis that infringes law schools? constitutionally protected interests under the First Amendment doctrine of compelled speech.?

Ironically, the Third Circuit ruling relied on two Supreme Court decisions generally used to deny equality to GLBT people: the 2000 Boy Scouts of America v. Dale case allowing the Scouts to prohibit gay participation, and to lesser extent the 1995 Hurley v. Irish-American Gay Lesbian and Bisexual Group of Boston case allowing St. Patrick?s Day parade organizers to exclude a gay group.

Both of those cases involved issues of ?expressive association? and ?compelled speech.?

The court heard oral arguments in the case in December. Chief Justice John Roberts authored the opinion. Justice Samuel Alito, who was seated two months after the case was heard, took no part in the decision.

?As a general matter, the Solomon Amendment regulates conduct, not speech,? wrote Roberts.

?This court has found compelled-speech violations where the complaining speaker?s own message was affected by the speech it was forced to accommodate,? wrote Roberts, explaining that in Hurley, the parade organizers, a private group, would have had their message altered by the inclusion of the gay group.

?Here, however, the schools are not speaking when they host interviews and recruiting receptions.?

?Nothing about [military] recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what they may say about the military?s policies,? Roberts wrote.

Roberts also applied the 1968 United States v. O?Brien case, where David O?Brien was convicted of breaking a federal law against burning draft cards.

O?Brien argued that he was expressing his opposition to the Vietnam war and challenged the law under the First Amendment.

The high court, in an opinion written by Chief Justice Earl Warren, said the law was constitutional and set up the formula that Roberts used extensively in this decision.

?A government regulation is sufficiently justified if it is within the constitutional power of the government,? wrote Warren, ?if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.?

So, Roberts wrote in this week?s ruling, ?Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept.?

?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.?

?It affects what law schools must do--afford equal access to military recruiters--not what they may or may not say, Roberts continued. ?There is nothing in this case approaching a government-mandated pledge or motto that the school must endorse.?

?Unlike a parade organizer?s choice of parade contingents, a law school?s decision to allow recruiters on campus is not inherently expressive,? Roberts said.

?We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy,? Roberts wrote. ?Surely, students have not lost that ability by the time they get to law school.?

Roberts distinguished this case from Dale by saying that the military recruiters do not become part of the university, unlike James Dale who became an assistant scoutmaster.

?Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students--not to become members of the school?s expressive association,? Roberts said. ?This distinction is critical.?

?A military recruiter?s mere presence on campus does not violate a law school?s right to associate, regardless of how repugnant the law school considers the recruiter?s message.?

Finally, Roberts said, ?Military recruiting promotes the substantial government interest in raising and supporting the armed forces--an objective that would be achieved less effectively if the military were forced to recruit on less favorable terms than other employers.?

?Obviously, we are disappointed that the court was not more receptive to the First Amendment claims that underlay our defense of our nondiscrimination policy,? said Yale Law Dean Harold Hongju Koh. ?The court read the Solomon Amendment to require that military recruiters who discriminate against some of our students must be given the same access as recruiters who comply with the [nondiscrimination] policy.?

Koh disagreed with the court that the ruling does not require the schools to endorse the motto ?Join the military, but not if you are gay or lesbian.?

Koh said solicitor general acknowledged during oral argument that ?law schools ?could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests.? ?

?In short,? said Koh, ?the court?s decision is clearly an invitation for law schools to engage in more speech, not less, in the months ahead. Many of us here at Yale Law School plan to accept that invitation to continue to speak out against the government?s discriminatory military recruiting practices.?

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