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Supreme Court Backs Campus Military Recruitment

by Brendan Coyne

Mar. 7, 2006 – A unanimous Supreme Court yesterday found that higher education institutions that accept federal money must permit military recruiters on campus.

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The 8–0 ruling turned away a challenge by law schools to a 10-year-old law withholding certain federal funds from schools that do not provide military recruiters the same campus access they offer civilian job recruiters.

By ruling in favor of the military, the court said the federal government could require recruiter access without violating speech and association freedoms protected under the First Amendment. The Forum for Academic and Institutional Rights (FAIR), an association of law schools and law-school faculties, had filed the suit and was backed by numerous individuals and the Society of American Law Teachers.

The law schools oppose the recruiter-access requirement because of the military’s so-called "don’t ask, don’t tell" policy banning openly homosexual and bisexual people from service. Law schools that have non-discrimination policies governing which firms can recruit their student bodies had applied those policies to bar the military.

But in 1996, Congress enacted the Solomon Amendment to revoke funding from schools prohibiting military recruitment. The law effectively forced schools to let recruiters back on campus.

According to the Association of American Law Schools (AALS), which did not actively participate in the case, under the Solomon Amendment work-study funds, guaranteed federal Perkins loans and an uncountable amount of research money could be denied schools that maintain anti-discriminatory polices. AALS has been working to repeal the law since 1999.

While both the federal government and FAIR agreed that the Solomon Amendment required schools to grant military recruiters the same access they provide to organizations and employers that do not openly discriminate against people, FAIR argued that in doing so the law violates the Constitution by compelling association with recruiters and speech on their behalf.

But the Court disagreed. "Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about military polices," Chief Justice John G. Roberts wrote for the court.

The Supreme Court’s finding also appears to grant military recruiters greater rights than businesses and nonprofits that engage in similarly discriminatory personnel practices. Prohibiting those groups is still permissible as the Solomon Amendment pertains solely to military recruiters.

"Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that "provided to any other employer," Robets wrote.

Roberts also said Congress has the constitutional authority to "provide for the common defense" and to "raise and support armies" so had the power to directly order military recruitment on campuses. Instead, he said, Congress chose not to employ its full authority, but gave colleges a choice between federal funding and allowing campus recruitment.

Responding to the decision through the somewhat ad-hoc, FAIR called the ruling "a call to arms to law-school administrators across the country to vocally demonstrate their opposition to the military’s ‘don’t ask, don’t tell’ policy."

The groups were joined in the case by the American Civil Liberties Union, which filed an amicus brief last September. In a statement yesterday, the ACLU said: "We disagree with the Court’s decision today in Rumsfeld v. FAIR. Universities should not be punished by the loss of their federal funding merely because they apply the same non-discrimination policies to the military that they apply to every other employer that seeks to recruit on campus."

Newly minted Justice Samuel Alito Jr. did not participate in the case.

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The NewStandard ceased publishing on April 27, 2007.

This News Report originally appeared in the March 7, 2006 edition of The NewStandard.
Brendan Coyne is a contributing journalist.

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