Houston Chronicle - Supreme Court Deals a Victory to Military Recruiters

March 7, 2006
By PATTY REINERT
Houston Chronicle Washington Bureau

WASHINGTON - Universities accepting federal funding cannot bar military recruiters from campus, even if faculty and students object to the Pentagon's "don't ask, don't tell" policy on gay and lesbian personnel, a unanimous U.S. Supreme Court ruled Monday.

The high court's decision, written by new Chief Justice John Roberts, reversed a lower court ruling that said a 1994 federal law ensuring the military's access to campuses infringed on the constitutional rights of some law students and professors who oppose the rejection of openly gay recruits.

The Forum for Academic and Institutional Rights, a group of mostly East Coast universities and law schools, had argued that they should not be forced to associate with military recruiters in order to keep $35 billion a year in federal money. The First Amendment guarantees freedom of speech and association.

Nonmilitary employers are forbidden from recruiting on many campuses if they discriminate against homosexual job applicants, the group argued.

But Roberts wrote that a military recruiter's mere presence on campus does not violate a law school's freedom of association "regardless of how repugnant the law school considers the recruiter's message."

The law "neither limits what law schools may say nor requires them to say anything," the chief justice wrote.

Roberts said students and faculty are free to demonstrate when recruiters come to campus and to voice their disagreement with "don't ask, don't tell," which allows gays and lesbians to serve in the military only if they keep their sexual orientation secret.

The federal law in question, known as the Solomon Amendment, has been more strictly enforced since the 9/11 terrorist attacks as the military has increased its recruiting because of the wars in Afghanistan and Iraq.

The military, bolstered in a "friend-of-the-court" brief filed by Texas and 10 other states, had argued that the law is a crucial tool, especially for recruiting military lawyers.

The court acknowledged the law's importance, and, noting Congress' constitutional role in raising and supporting an army, said lawmakers could demand that military recruiters be given access to campuses even if the schools decide to give up their federal funding.

The decision was 8-0. New Justice Samuel Alito refrained because he was not yet on the bench when the case was argued in December.

"This is an important victory for the military and ultimately for our national security," said Jay Sekulow, chief counsel of the American Center for Law and Justice. "At a time when our military is trying to attract the best and the brightest of our young people, it makes no sense to bar recruiters from college campuses especially when federal funds are used to support these schools."

Sen. John Cornyn, R-Texas, who chairs an Armed Services subcommittee, also applauded the decision, which he said would "ensure that the military will continue to be comprised of our nation's finest."

But Steven Shapiro, legal director of the American Civil Liberties Union, which backed the universities, said the schools should not be punished "merely because they apply the same nondiscrimination policies to the military that they apply to every other employer that seeks to recruit on campus."

Shapiro noted with relief, however, that nothing in the court's decision endorses "don't ask, don't tell."

Sharra Greer, of the Servicemembers Legal Defense Network, which defends servicemembers ousted for being homosexual, said with or without the Solomon Amendment, "our armed forces should lead, and not follow, in their commitment to equal opportunity."

Texas weighed in partly because a decision against the federal government could have damaged the state's ability to put conditions on state funding of colleges.

For example, Texas makes its funding contingent on giving equal access to home-schooled students and making athletes on state scholarships meet minimum academic standards. The state also feared losing the ability to force Texas schools to admit students who graduate in the top 10 percent of their high school classes a major tool for ensuring that minority students have access to higher education.