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Supreme Court Rules Colleges Must Allow Military Recruiters

By Linda Greenhouse

The Supreme Court on Monday upheld a law that cuts federal funding for universities that do not give military recruiters the same access to students that other potential employers receive. The court ruled that the law does not violate the free-speech rights of universities that object to the military’s exclusion of gay men and lesbians who are open about their sexual orientation.

The opinion by Chief Justice John G. Roberts Jr. was unanimous.

It was a setback, although hardly an unexpected one, to a coalition of law schools that brought the constitutional challenge, as well as to the Association of American Law Schools, which represents nearly all accredited law schools and since 1991 has required adherence to a nondiscrimination policy on sexual orientation as a condition of membership.

Many law schools initially chose to comply with the association’s policy by barring military recruiters completely or by taking such steps as refusing to help the recruiters schedule appointments or relegating them to less favorable locations for meeting with students.

Congress responded with a series of increasingly punitive measures, all known as the Solomon Amendment, culminating in the 2004 statute at issue in the case. It requires access for military recruiters “that is at least equal in quality and scope” to access for other employers, on pain of forfeiting grants to the entire university from eight federal agencies, including the Departments of Defense, Education, and Health and Human Services.

With hundreds of millions of dollars at stake, all but a handful of law schools yielded. Nearly three dozen banded together as the Forum for Academic and Institutional Rights and turned to the courts.

Carl C. Monk, executive director of the law school association, said in an interview on Monday that the group would continue to require its member schools to engage in “significant” activities to counter the impact of the Solomon Amendment, such as organizing faculty forums at which the military’s policy could be analyzed and challenged.

The plaintiffs had persuaded the federal appeals court in Philadelphia that the Solomon Amendment imposed an “unconstitutional condition” on the universities’ receipt of federal money by requiring them to surrender their First Amendment rights and become involuntary carriers of the government’s anti-gay message.

But Roberts said on Monday that the plaintiffs’ theory of the case, as well as the opinion by the 3rd U.S. Circuit Court of Appeals, was based on a fundamental misperception about what the Solomon Amendment was imposing.

“As a general matter, the Solomon Amendment regulates conduct, not speech,” the chief justice said. “It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say.”

Pointing out that law schools remained free to disavow the military’s policy, to denounce it or even to help students organize protests, Roberts said that “the Solomon Amendment neither limits what law schools may say nor requires them to say anything.”

Citing a 1990 Supreme Court decision that upheld an equal-access requirement for student religious clubs in high schools, he continued: “We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so. Surely students have not lost that ability by the time they get to law school.”

To the extent that speech is involved when a military recruiter visits a campus, the chief justice said, the speech is “clearly” the government’s, not the law school’s. He said that placing the incidental assistance that universities must provide to military recruiters on the same plane as compelling students to recite the Pledge of Allegiance “trivializes the freedom protected” by a 1943 Supreme Court decision holding that the Pledge may not be required.

While the conclusion that the Solomon Amendment does not directly infringe on the law schools’ free-speech rights was at the heart of the court’s analysis, the opinion contained several other important threads.

One was the conclusion that allowing military recruiters on campus was not an “inherently expressive” activity. This conclusion permitted Roberts to explain why the case was not governed by a Supreme Court precedent declaring unconstitutional a Florida law that required newspapers to grant a “right of reply,” or by another precedent allowing the organizers of the St. Patrick’s Day parade in Boston to exclude a gay-pride group despite a nondiscrimination ordinance.

The difference, the chief justice said, was that both the newspaper and the parade organizers were engaged in expression with which the government could not constitutionally interfere, while law schools “are not speaking when they host interviews and recruiting receptions.”