Colleges Can Bar Army Recruiters
By ADAM LIPTAK
New York Times
November 30, 2004
Universities may bar military recruiters from their campuses without risking the loss of federal money, a federal appeals court ruled yesterday.
A three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, found that educational institutions have a First Amendment right to keep military recruiters off their campuses to protest the Defense Department policy of excluding gays from military service.
The 2-to-1 decision relied in large part on a decision in 2000 by the United States Supreme Court to allow the Boy Scouts to exclude gay scoutmasters. Just as the Scouts have a First Amendment right to bar gays, the appeals court said, law schools may prohibit groups that they consider discriminatory.
The 1995 law at issue in the decision, the Solomon Amendment, barred the federal government from disbursing money to colleges and universities that obstruct campus recruiting by the military. As amended and interpreted over the years, the law prohibits disbursements to all parts of a university, including its physics department and medical school, if any of its units, like its law school, make military recruiting even a little more difficult.
Billions of dollars are at stake, and no university has been willing to defy the government. Indeed, several law schools that are members of one of the groups that sued to block the law, the Forum for Academic and Institutional Rights, have not been publicly identified. Among the institutions willing to be named are the law schools of New York University and George Washington University. The law faculties of Stanford, Georgetown and several other law schools are also in the group.
A spokesman for the Justice Department, Mark Corallo, said no decision had been made on an appeal.
"The United States continues to believe that the Solomon Amendment is constitutional," Mr. Corallo said. "We believe that Congress may deny federal funds to universities which discriminate and may act to protect the men and women of our armed forces in their ability to recruit Americans who wish to join them in protecting their country."
The government can ask the full appeals court to review the decision by the three-judge panel or ask the Supreme Court to hear the case. In either event, the government may also ask for a stay of the decision.
In the meantime, colleges and universities are free to limit military recruiters' access to their campuses, said E. Joshua Rosenkranz, who represents the law schools in the suit.
"Now every academic institution in the country is free to follow their consciences and their nondiscrimination policies," Mr. Rosenkranz said. "Enlightened institutions have a First Amendment right to exclude bigots. In a free society, the government cannot co-opt private institutions to issue the government's message."
He noted, though, that most law schools' policies had never completely barred recruiters on campus. Most simply withheld some forms of assistance, like arranging interviews and posting notices.
The law schools' antidiscrimination policies do not specifically focus on the military. They apply to all potential employers with an announced policy of discrimination on the basis of, among other factors, race, sex and sexual orientation.
The dean of the New York University Law School, Richard L. Revesz, said he welcomed the decision.
"We are gratified," Mr. Revesz said, "by the court's protection of our right to exclude from on-campus interviews employers who refuse to hire qualified students simply because of their sexual orientation."
Mr. Rosenkranz said the reluctance of several law schools to be publicly identified was driven by fear.
"They don't want retribution that is exacted behind closed doors by faceless bureaucrats and vindictive politicians," he said.
The appeals court said the law violated First Amendment rights of the schools in two ways.
First, Judge Thomas L. Ambro wrote, the schools are entitled not to associate with groups whose policies they oppose.
"Just as the Boy Scouts believed that homosexual conduct is inconsistent with the Scout Oath," Judge Ambro wrote, "the law schools believe that employment discrimination is inconsistent with their commitment to fairness and justice."
Second, Judge Ambro said, the presence of military recruiters on campus forced universities to convey a message with which they disagreed. That is, he said, a form of compelled speech prohibited by the First Amendment.
He noted, too, that the military had other ways to recruit lawyers, including radio and television advertising.
Judge Ambro was appointed by President Bill Clinton. Judge Walter K. Stapleton, who was appointed by President Ronald Reagan, joined the majority.
A dissenting judge, Ruggero J. Aldisert, appointed by President Lyndon B. Johnson, said the decision was misguided, particularly in wartime.
"What disturbs me personally and as a judge," Judge Aldisert wrote, "is that the law schools seem to approach this question as an academic exercise, a question on a constitutional law examination or a moot court topic, with no thought of the effect of their action on the supply of military lawyers and military judges."
"No court heretofore has ever declared unconstitutional on First Amendment grounds any Congressional statute specifically designed to support the military," he added. "It bears note that the military's policy against homosexual activity has been adjudged by a number of our sister courts of appeal not to violate the Constitution."
Judge Aldisert took issue with the majority's First Amendment analysis, noting that nothing in the law forbade the law schools to criticize the military's policy on gays.
Howard J. Bashman, who helped write a supporting brief on behalf of students who favored the law, said the decision would hurt the military and the public.
"A ruling of this sort will cause the military to end up with a lower quality of lawyer," Mr. Bashman said. "These lawyers are involved in targeting decisions and in decisions about how prisoners have to be treated."