Supreme Court Rules Against Schools in Military Recruiting Case

You can't have it both ways. Good job supreme court.

A unanimous Supreme Court ruled on Monday that the federal government could withhold funding from schools that bar military recruiters in protest of a policy that bans openly gay men and women from serving in the nation's armed forces.

All eight sitting justices who heard oral arguments in the case last December rejected the schools' argument that being forced to allow the recruiters on campus violated their First Amendment rights.

"Students and faculty are free to associate to voice their disapproval of the military's message," wrote Chief Justice John Roberts. "Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students — not to become members of the school's expressive association."

Daniel Polsby, dean of George Mason University School of Law, said he believed the law schools were merely cloaking their "antipathy" toward the military behind the First Amendment claims.

"I thought the protest angle was pretty much of a pretext," said Polsby, who filed an amicus brief supporting the government. "Why should they protest the military? The military didn't make this policy — Congress made this policy."

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Many law schools across the country began banning military recruiters from campus after the Pentagon's "don't ask, don't tell" policy was passed by Congress during the Clinton administration. Most law schools require recruiters to sign a form stating the employers they represent do not discriminate on the basis of race, gender, national origin or sexual orientation.

Because of "don't ask, don't tell," military recruiters were unable to sign that form. But while most law school anti-discriminatory policies are in line with federal equal-opportunity law, the military's ban on gays proved to be a challenge because as a law, the discrimination was legal.

In response to the ban on military recruiters, conservative members of Congress in 1994 passed the Solomon Amendment, which is at the heart of the dispute settled by the high court. The law allowed the Department of Defense, along with other departments, to withdraw federal grant money to universities that barred or prevented military recruitment on campus.

A later version of the law allowed the entire university to be penalized, even if only the law school barred military recruiters. Faced with losing millions of dollars in research and grant funding, law schools began inviting military recruiters back. But many joined in a lawsuit against the Department of Defense, arguing their First Amendment right to protest was being violated.

The 3rd Circuit Court of Appeals decided in favor of the schools last November, having found that that "the Solomon Amendment violates the First Amendment by impeding the law schools' rights of expressive association and by compelling them to assist in the expressive act of recruiting."

But the Supreme Court's justices seemed skeptical of that finding during oral arguments. Roberts in particular was troubled by the schools' First Amendment claims, since the schools are free to decline the federal funding.

Moreover, he noted, no reasonable person would believe the presence of military recruiters on a law school's campus signaled the law school's support for "don't ask, don't tell."

"A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message," Roberts wrote. "The Solomon Amendment neither limits what law schools may say nor requires them to say anything."

Justice Samuel Alito, who sat on the 3rd Circuit when it decided the case, recused himself, presumably because of ties to a law school involved. He did not participate in the Supreme Court's decision either, since it was argued before his confirmation to the bench.

 

Finally, some rational decisions coming from the Court.

I do think it was useful for the law schools to confirm that they valued homosexual sex more than our national security. Of course, they also valued the continued flow of taxpayer money even more highly than homosexual sex. So even their claim to principal was a lie.

 

This is the first good thing to come from the Bush administration in a long time. A rational decision. yes.