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Headed for the High Court

Headed for the High Court
May 3, 2005

After more than a decade of political and legal wrangling between law schools and the federal government over military recruiters' access to college campuses, the issue will soon face the ultimate arbiter: the U.S. Supreme Court.

The justices agreed on Monday to decide in its term that begins in October whether Congress acted constitutionally in 1994 when it passed a law restricting the flow of federal funds to colleges that bar military recruiters from their campuses because the Pentagon's policy on gay and lesbian servicemembers violates their nondiscrimination policies. The court will review a November decision by the U.S. Court of Appeals for the Third Circuit in a case known as Rumsfeld v. Forum for Academic and Institutional Rights (No. 04-1152).

The appeals panel ruled, by a 2 to 1 margin, that the so-called Solomon Amendment, which gives federal agencies the right to withhold funds from campuses that do not give Pentagon recruiters equal access to their students, violated the First Amendment rights of law schools.

Although the U.S. government, as the losing party in the Third Circuit, formally asked the Supreme Court to review the appeals court's ruling, law school officials said they, too, were pleased that the long lingering case might finally be resolved.

"This case has dragged on for so long, and schools have been laboring under these rules for a decade now, so it's time that we have a definitive answer one way or the other," said Kent Greenfield, a law professor at Boston College and founder of the Forum for Academic and Institutional Rights, a coalition of two dozen law schools challenging the recruiter law. "It was pretty clear the court was going to take up the issue sooner or later anyway, and we think the record in this case presents the best chance of success. We’re optimistic."

But Eugene Volokh, a law professor at the University of California at Los Angeles, said he expected the Supreme Court to side with the Pentagon, on the grounds that it is not unreasonable (or more importantly, unconstitutional) for the government to place conditions on its awarding of money. “What the government is really saying is, ‘Sure, you have a First Amendment right not to let us use your property normally, But part of what we’re buying with this money is the right to use your property,’” Volokh said.

The military recruiting issue has been contentious more or less from the day in 1994 that Congress adopted the Solomon Amendment, named for its sponsor, the late Rep. Gerald Solomon (R-N.Y.). Lawmakers enacted the law, which initially applied only to funds from the Defense Department, because more than two dozen law schools voted to bar military recruiters because the Pentagon's treatment of gay servicemen and women violated the institutions' policies barring discrimination against gay people.

Congress amended the law twice in the late 1990s in ways that generally expanded its reach, and by 1999, colleges that barred recruiters' access to their students risked not only Defense Department funds but those from the Education, Health and Human Services, Labor and Transportation Departments, too. Another change allowed the Pentagon to deny its funds to an entire university if only one part of it, like a law school, restricted military recruiters.

College officials and the government sought compromises over the next few years, and many institutions crafted policies that gave military recruiters at least some access to their students. But the Pentagon pushed the issue more aggressively after the attacks of September 11, 2001, sending letters to colleges saying they needed to provide the same kind of access to military recruiters as they gave to any other recruiters. Congress codified that more aggressive approach in Defense Department spending legislation last year.

That steady intensification prompted the lawsuit that FAIR filed in 2003. In that case, a federal district court sided with the Pentagon late that year, but the Third Circuit, in reversing last November, concluded: “The Solomon Amendment conditions funding on the law schools’ propagation, accommodation, and subsidy of the military’s recruiting, which is expression. The government has not shown that the assistance from law schools that the Solomon Amendment requires is narrowly tailored to advance its interest in recruiting. FAIR has thus established a reasonable likelihood of establishing that the Solomon Amendment unconstitutionally conditions funding on a basis that infringes law schools’ constitutionally protected interests under the First Amendment doctrine of compelled speech."

In the wake of the appeals court’s ruling, Harvard and Yale Universities and New York Law School announced that they would again restrict military recruiters. On behalf of the Pentagon, the U.S. Justice Department asked the Supreme Court in February to hear the case.

Based on what’s in their legal briefs to the court, both the government and FAIR seemed to take for granted that the justices would agree to hear the case, as they spend far more time arguing the legal merits of the case than they do explaining why the court should hear it. (The main exception: the government’s argument that the Supreme Court should take the case because the Third Circuit’s ruling threatens the military’s ability to recruit effectively, which it says is “essential to sustain an all-volunteer military, particularly in a time of war.”)

But the government’s petition focuses mainly on its perceived flaws in the Third Circuit’s "constitutional analysis," which it deems “seriously flawed.” The government is not forcing colleges to take positions or associate with groups they don’t like, the Justice Department argues; “if institutions do not wish to associate with military recruiters or their speech, they may decline to associate with the federal funding. Neither the association, nor the receipt of federal funds, nor the equal access policy is compelled.”

In addition, the government’s brief plays down the extent to which the Solomon Amendment forces institutions to act against their will. The law “does not seek to affect federally funded institutions’ selection of their own internal membership. Nor does it ask the institutions to adopt the statements made by military recruiters as their own. To the contrary, institutions that voluntarily accept federal funding remain free to protest the military’s policies and to make clear that they do not
agree with them.”

In its own petition to the Supreme Court, FAIR challenges the government’s contention that by merely imposing conditions on a college’s receipt of funds, the Solomon Amendment avoids trampling on institutions’ Constitutional rights. “The current law is that the government is an exception to the adage that whoever pays the piper calls the tune: ‘Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise,’" it argues, quoting a 2001 ruling by the Supreme Court.

 

 

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