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�.�

Previous Story------------------------------------ Next Story

List of Stories in this Week's Issue