Justices to Decide if Colleges Can Bar Military Recruiters

[jatx]

Justices to Decide if Colleges Can Bar Military Recruiters
By DAVID STOUT, New York Times

WASHINGTON, May 2 - The Supreme Court agreed today to consider a case involving national defense, concepts of patriotism and free speech and, not incidentally, billions of dollars in federal money.

The justices announced that they would review a lower-court ruling, in favor of 25 law schools, that universities may bar military recruiters from their campuses without risking the loss of federal aid. Arguments will be heard in the justices' next term, which begins in October.

At issue is a ruling by the United States Court of Appeals for the Third Circuit, in Philadelphia, which held in a 2-to-1 decision last Nov. 29 that educational institutions have a First Amendment right to bar military recruiters to protest a Defense Department policy that discriminates against gay people by barring them from serving openly in the armed forces.

The controversy began in 1995, when Congress passed what became known as the Solomon Amendment to a military appropriations bill. Named for its sponsor, Representative Gerald B.H. Solomon, an upstate New York Republican, the measure barred disbursement of money from the Departments of Defense, Transportation, Health and Human Services and Education, as well as some other agencies, to any college or university that blocked campus recruiting by the military.

As Mr. Solomon put it at the time: "Tell recipients of federal money at colleges and universities that if you do not like the armed forces, if you do not like its policies, that is fine, that is your First Amendment right. But do not expect federal dollars to support your interference with our military recruiters."

The amendment's co-sponsor, Representative Richard Pombo, Republican of California, said the measure would "send a message over the wall of the ivory tower of higher education." The message, he said, is that "starry-eyed idealism comes with a price."

Virtually every accredited law school bars discrimination on the basis of sexual orientation, putting their universities in an awkward position with respect to the military. Some law schools barred military recruiters from their campuses, while others arranged visits under conditions that set the military people apart from other recruiters.

As amended and interpreted over the years, the law is supposed to prohibit federal aid to all parts of a university if any of its units, like a law school, makes military recruiting even a little more difficult. Since the attacks of Sept. 11, 2001, the Defense Department has been enforcing the measure more strictly, putting more pressure on the schools.

Writing for the Third Circuit last November, Judge Thomas L. Ambro said the schools were entitled not to associate with groups whose policies they oppose, and that the presence of military recruiters forced the universities to convey a message with which they disagreed - a form of compelled speech prohibited by the First Amendment.

Judge Walter K. Stapleton joined Judge Ambro's decision. But the dissenter, Judge Ruggero J. Aldisert, said the decision was misguided, particularly in wartime, and that the law school plaintiffs were wrong to look at the issue as simply "an academic exercise" or "a moot court topic."

"No court heretofore has ever declared unconstitutional on First Amendment grounds any Congressional statute specifically designed to support the military," Judge Aldisert said.

The case is Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-1152. The Bush administration has argued that the Solomon Amendment is constitutional, since the schools are free to protest military policies if they are also willing to forgo federal money.

Mr. Solomon, a former marine, served 20 years in Congress before retiring in 1998. He was famous for his tough talk in support of conservative causes, once inviting Representative Patrick Kennedy of Rhode Island to "step outside" to settle a dispute over a proposed ban on assault weapons.

Mr. Solomon died in 2001 at 71. Mr. Pombo, the co-sponsor of the amendment, is still in Congress.

[Pete]

This will be over pretty quickly. The Court just needs to check with the Europeans and see how they feel about the issue. The might even ask the world court for a little help.

Pete

[dennisw]

Gays are welcomed, but not military recruiters. That's a hell of a note. No wonder our Courts and legal system is so screwed up.