Most Supreme Court
Justices Back
Campus Recruiting
By REUTERS, from the
NYTimes on the Web, December 6, 2005
WASHINGTON -- A majority of
Supreme Court justices expressed support on Tuesday for the U.S. government's
position that universities that get federal funds must allow military recruiters
on campus, even if the schools oppose the Pentagon's policy on gays and
lesbians.
The justices appeared likely to uphold a federal law dating back to 1994 that
allows the government to withhold money from universities that deny military
recruiters the same access to campuses given to other employers.
Congress adopted the law after some universities sought to restrict military
recruiting to protest the Pentagon's "Don't ask, don't tell," policy that bars
openly gay individuals from serving in the armed forces.
A coalition of law schools challenged the law and said the Pentagon's policy
violated their own long-standing policies against discrimination based on sexual
orientation.
New Chief Justice John Roberts was among the court members who seemed supportive
of the government's position during the questioning of E. Joshua Rosenkranz, a
New York attorney who argued for the law schools.
A decision by the high court is expected by the end of June.
Roberts questioned whether the law insisted on anything, given that universities
remained free to bar military recruiters as long as they give up federal
funding, which he said they have been unwilling to do.
Referring to a university that does not want to host a military recruiter on
campus, Roberts said, "You are perfectly free to do that if you don't take the
money."
Justice Antonin Scalia pressed Rosenkranz on whether the law required any actual
speech, asking, "Which words are the universities compelled to utter by this
legislation?"
DISCLAIMERS, PROTESTS ALLOWED
Justice Anthony Kennedy said the universities could add a disclaimer that their
law school opposed the Pentagon's policy on e-mails sent to students about the
dates and places for visits by military recruiters.
Kennedy asked whether a law school could prevent a law firm from recruiting on
campus because it adopted a litigating position opposing gay marriages.
Justice Sandra Day O'Connor said a law school could simply inform each student
that it disagreed with the message conveyed by the military recruiters.
Justice Stephen Breyer seemed worried about whether a university would have the
same right to restrict access to military recruiters because it opposed the
Pentagon's advocacy of racial diversity.
Of the nine court members, Justice David Souter seemed the most troubled by the
law and what the government sought to convey. "I thought the single message was
join the Army, but not if you are gay," he said.
Solicitor General Paul Clement of the Justice Department said that, using the
universities' logic, limits on military recruiting could be adopted if a school
opposed the war in Iraq or in Afghanistan. "I think there is no limit on the
(law schools') argument," he said.
He defended the law and said, "It allows the military a fair shot at recruiting
the best and the brightest."
Clement said universities remained free to criticize the Pentagon's policy and
could even organize protests and put up signs outside the recruiting room
stating that the law school disagreed with the Pentagon's policy.
The Supreme Court agreed to hear the government's appeal after a U.S. appeals
court in Philadelphia ruled the law could not be enforced because it infringed
on the constitutional free-speech rights of the universities.
|
