Supreme Court to
Review Recruiting Law
By AP from the
NYTimes on the Web, May 2, 2005
WASHINGTON -- The Supreme
Court said Monday it will consider whether colleges and universities may bar
military recruiters from their campuses without fear of losing federal funds.
Justices will review a lower court ruling in favor of law schools that
restricted recruiters to protest of the Pentagon's policy of excluding openly
gay people from military service.
That ruling, by the Philadelphia-based 3rd U.S. Circuit Court of Appeals,
invalidated a 1994 federal law requiring law schools to give the military full
access or lose their federal funding. The appeals court ruled the law
infringed on law schools' free speech rights.
The Supreme Court will hear the case during its next term, which begins in
October.
The law, known as the Solomon Amendment, has been controversial for law schools
that have nondiscrimination policies barring any recruiter -- government or
private -- from campus if the organization unfairly bases hiring on race, gender
or sexual orientation.
''The Solomon Amendment forces the law school to violate its own policy and
actively support military recruiters who come onto campus to engage in the very
discriminatory hiring practices that the law school condemns,'' wrote the
coalition of 31 law schools, known as the Forum for Academic and Institutional
Rights.
The Bush administration countered in court filings that equal access to campuses
for recruiting is necessary to fill the military's legal ranks ''in a time of
war.'' It said the law does not violate free speech rights because schools
are free to protest so long as they are willing to forgo federal research
dollars, which amount to hundreds of millions at some schools.
''The Solomon Amendment reflects Congress' judgment that a crucial component of
an effective military recruitment program is equal access to college and
university campuses,'' Acting Solicitor General Paul Clement wrote.
A three-judge panel of the 3rd Circuit disagreed. It voted 2-1 to bar
enforcement of the Solomon Amendment pending a full trial because of a
''reasonable likelihood'' the law would be found unconstitutional.
In its decision, the 3rd Circuit cited a 2000 Supreme Court ruling that allowed
the Boy Scouts to exclude gay scoutmasters. Just as the Scouts have a
right to exclude gays based on a First Amendment right of expression, so too may
law schools bar groups they consider discriminatory, the 3rd Circuit said.
The Bush administration's appeal has drawn the backing of Rep. Richard Pombo, R-Calif.,
some law students and the Mountain States Legal Foundation, who argued in a
friend-of-the-court filing that the court should defer to Congress on this
matter.
In February, the House passed a nonbinding resolution on a 327-84 vote that
expressed support for the law, which also denies defense-related funding to
universities that don't provide ROTC programs.
When the Solomon Amendment was passed in 1994, many law schools opted to give
military recruiters limited access. Harvard allowed the military on campus
but declined to volunteer its career placement staff to arrange interviews.
The University of Southern California, meanwhile, allowed recruiters to
interview but didn't invite them to school-sponsored job fairs off campus.
After the Sept. 11 attacks, the Pentagon began strictly enforcing the measure,
demanding full recruitment access to campuses and threatening to pull funding if
schools didn't comply. In summer 2003, Congress amended the Solomon
Amendment to require equal access.
Since then, law schools have grudgingly complied but also filed lawsuits
challenging the law. Earlier this year, a U.S. district judge in
Bridgeport, Conn., ruled Yale Law School had a right to bar military recruiters
from its job interview program. Similar cases are pending elsewhere.
The Supreme Court case is Rumsfeld v. Forum for Academic and Institutional
Rights, 04-1152. Arguments will be heard in the court's next term
beginning in October.
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