Military keeps campus access


WASHINGTON -- The military has a right to recruit on college campuses and at law schools nationwide, the Supreme Court ruled yesterday, despite the Pentagon's policy of excluding openly gay men and women from its ranks.

The justices unanimously rejected a free-speech claim brought by some law schools and professors who said they should not be forced to aid an employer that discriminates against job applicants because of their sexual orientation.

In his first major opinion for the court, Chief Justice John G. Roberts Jr. called the plaintiffs' claim a stretch. The decision upheld the Solomon Amendment, in which Congress said colleges and universities that accept federal money must give the Pentagon the same right to recruit on campus that other employers have.

"The Solomon Amendment regulates conduct, not speech," Roberts said. "It affects what law schools must do - afford equal access to military recruiters - not what they may or may not say. ... [It] neither limits what the law schools may say nor requires them to say anything."

Yesterday's case did not arise from campus opposition to the war in Iraq, nor have there been major protests over military recruiting. Unlike the Vietnam era, these days campuses are not centers of widespread protests, and military recruiters have not been barred from campuses.

Nonetheless, several law schools have carried on a mostly symbolic protest against the Pentagon's refusal to change its policy against gays. Since the 1960s, the Association of American Law Schools has had a policy of refusing to aid recruiting by employers whose hiring practices are discriminatory. In 1990, that policy was amended to include sexual orientation.

To enforce the policy, some law schools refused to post information on recruiters for the armed forces who planned to visit and would not make rooms available where the recruiters could meet with students who were interested in becoming military lawyers.

"No one was denying them access. We just withheld affirmative support," said Larry Kramer, dean of the Stanford Law School, who was a New York University law professor when the case began.

Congressional action

Members of Congress objected to what they saw as second-class treatment for military recruiters. In 1995, they adopted an amendment sponsored by Rep. Gerald B.H. Solomon, a New York Republican, that threatened to cut off federal funds to a college or university that prevented the armed forces from recruiting effectively on campus.

Colleges and universities receive about $35 billion a year in federal aid.

In recent years, Congress has strengthened the amendment to say that the military must be given equal treatment when its recruiters visit a campus. Colleges and universities did not challenge the law.

"We are in a war, whether properly declared or not, and during a war, First Amendment rights nearly always retract," said Matthew Spitzer, dean at the University of Southern California law school. "The idea the Supreme Court would tell the federal government it could not attach a condition to the receipt of federal funds is unthinkable."

The law faculties at several dozen schools, including Stanford, New York University, Georgetown and the University of San Francisco, joined a lawsuit to challenge the measure as unconstitutional.

They relied in part on a Supreme Court ruling that was seen as a major setback for gays six years ago. The court ruled 5-4 in that case that the Boy Scouts of America had a free-speech right to expel an openly gay scoutmaster because his presence conflicted with the organization's message of "morally straight" behavior.

The challengers to the Solomon Amendment said the same logic should work in reverse. They said they had a free-speech right to exclude anti-gay employers - including the Pentagon - because their presence would conflict with their message of tolerance and nondiscrimination.

The Philadelphia-based U.S. Court of Appeals for the 3rd Circuit agreed, saying the Solomon Amendment was unconstitutional because it "compels law schools to propagate the military's message," including its bias against gays.

The Bush administration appealed that ruling on behalf of Defense Secretary Donald H. Rumsfeld, and the Supreme Court reversed it yesterday in Rumsfeld v. FAIR.

The chief justice said the law posed no free-speech problems. he said that first, the law schools and the faculty are not required to speak in favor of the military; second, they may speak openly against the military without losing federal money; and third, students will not be fooled into thinking the law school agrees with the Pentagon simply because it has permitted the Pentagon to recruit on campus.

"We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits," he wrote, referring to a decision that allowed a Bible-study group to meet on campus at a high school. "Surely, students have not lost that ability by the time they get to law school," Roberts said.

All of the justices signed his opinion except for new Justice Samuel A. Alito Jr., who did not participate.


"I am obviously disappointed. There is no sensitivity in this opinion to the important concern the law schools have," said Erwin Chemerinsky, a Duke University law professor who joined the lawsuit.

But several Maryland colleges said the ruling would have little impact on their campuses.

Representatives for the University of Maryland, College Park, Loyola College and the Johns Hopkins University said they do not restrict military recruiters.

Rosemary Harty, a spokeswoman for St. John's College in Annapolis, said the school permits the military to meet with students on campus but asks them to stay at a fixed site and not to approach students. She said she did not think that policy would be affected by the ruling.

Gay-rights advocates said they hoped school officials would make use of their free-speech rights. The court's opinion "leaves room for students and universities themselves to speak out ... and show their abhorrence of the military's policy that discriminates against gay and lesbian people," said Jon Davidson, legal director of Lambda Legal.

David G. Savage writes for the Los Angeles Times. Sun reporter Michael Dresser contributed to this article.

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