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Justices uphold military recruiting on campuses

Court: Schools that accept federal money must allow recruiters

From Bill Mears

The Supreme Court ruled that universities that get federal funds must allow military recruiters.



Supreme Court

WASHINGTON (CNN) -- The Supreme Court ruled Monday that universities that accept federal money must allow military recruiters on campus, even if they oppose the Pentagon's policy barring people who are openly homosexual from serving.

Justices strongly rejected law schools' challenge that they should have First Amendment protection in a dispute over the government's controversial "don't ask, don't tell" policy on gay personnel.

Writing his first major opinion, Chief Justice John Roberts said the campus visits were a vital recruiting tool.

"Accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions," Roberts wrote.

He added, "Nothing about recruiting suggest the law schools agree with any speech by recruiters, and nothing in (federal law) restricts what the law schools may say about the military's policies."

It was clear from oral arguments in December that the high court was skeptical of the school's claims. (Full story)

Led by Roberts, several justices said colleges opposed to the military's policy could simply refuse the government money.

Justice Sandra Day O'Connor, now retired, added there was nothing stopping schools from allowing recruiters while still making their objections known by posting disclaimers or openly protesting.

O'Connor's vote did not count and her replacement, Justice Samuel Alito, did not participate in the decision.

The Pentagon praised the ruling.

"Equal access to law schools -- and all schools for that matter -- for our recruiters is crucial to ensuring we attract a diverse and highly qualified pool of applicants," Lt. Col. Ellen Krenke told CNN.

She added that the Defense Department was not asking for special treatment, or to suppress free speech. "We simply want to be able to compete on an even playing field for the best and brightest that our nation's universities have to offer."

More than ideology was at stake for both sides.

The military said it has pressing needs for educated talent with highly specialized skills, such as translators, engineers and lawyers. The Pentagon has suffered recent shortfalls in its recruiting, and officials worry military preparedness may be threatened. They say schools are free to bar the government from campus but should not continue receiving government money if they do.

Universities receive about $35 billion a year from federal programs, much of the money for medical and scientific research. They argue their anti discrimination policies are constitutionally protected, and that academic freedom should not be compromised as a condition for accepting government benefits.

Both sides worry about potentially harmful and lasting effects if the defense research programs based in academia don't get federal money.

The government argued if the law was overturned, schools could take their anti discrimination policies further by refusing admission to veterans as a protest of the Bush administration's policies in Iraq and Afghanistan.

Several justices appeared to agree with that assertion.

Nearly every law school and many universities have policies preventing employers who discriminate based on race, gender or sexual orientation from participating in career placement on campus.

The U.S. military bans openly homosexual service members, following the 1993 "don't ask, don't tell" policy. That policy prevents officials from inquiring into whether a service member is gay or lesbian, but allows the military to discharge homosexuals if any evidence emerges of their orientation.

The military told schools it could not comply with their sexual orientation provisions. Many schools responded by banning military recruiters, and Congress responded in 1994 by blocking federal funds from schools that did so.

The "Solomon Amendment," as the fund-blocking provision became known, eventually prompted compromise among universities and the military, but the Bush administration took a hard-line stance shortly after 9/11, demanding access equal to that given other job recruiters.

A group of law schools sued, arguing a constitutional right "to be free from compelled endorsement of messages repugnant to them."

The government said it sought only equal treatment, but the schools countered they were being asked to grant a special exemption that other employers did not enjoy.

A federal appeals court ruled for the schools, concluding "unconstitutional conditions" existed when the government restricted speech by threatening to withhold money. But the high court faulted the lower court's reasoning.

"Students and faculty are free to associate to voice their approval of the military's message," Roberts wrote. "The Solomon Amendment therefore does not violate a law school's First Amendment rights. 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."

A coalition of professors from several university law schools, the Forum for Academic and Institutional Rights (FAIR), expressed disappointment, but vowed to continue fighting the military's policy on gays.

"I take this Supreme Court opinion as a call to arms to administrations and faculties across the country to, in fact, convey a message of justice that they don't believe in 'Don't Ask, Don't Tell,'" said Chai Feldblum of Georgetown University Law Center, and a FAIR co-founder.

Other research programs, including medical and scientific studies, could be at stake because the law was amended to include withholding funds from the entire university, even if the law school was the only one preventing recruiters.

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