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Universities forced to recruit because of federal funds { March 6 2006 } Original Source Link: (May no longer be active)
http://www.chicagotribune.com/news/local/chi-060306campus,1,1929177.story?coll=chi-news-hedhttp://www.chicagotribune.com/news/local/chi-060306campus,1,1929177.story?coll=chi-news-hed
Court upholds campus military recruiting
By Frank James and Jodi S. Cohen
Tribune staff reporters
Published March 6, 2006, 8:11 PM CST
WASHINGTON -- In a unanimous decision, the Supreme Court ruled Monday that colleges and universities that accept federal funding cannot bar military recruiters from their campuses because they object to the Pentagon's discriminatory treatment of gays in the armed services.
In an 8-0 decision, the high court decisively rejected the claim by a group of law schools and faculty members that their 1st Amendment rights to free speech—in opposing the Defense Department's "don't ask, don't tell" policy toward gays—were being violated by allowing the recruiters on campus. The high court's ruling reversed an appellate court decision that held that the schools had the right to block the recruiters because they opposed the military's policy.
While the court's decision came in a case brought by the Forum for Academic and Institutional Rights Inc., comprised of several law schools and academics, the ruling effectively blocks colleges and universities generally from banning the recruiters from their campuses if they wish to keep federal aid.
In an opinion by Chief Justice John Roberts Jr., the court rejected the law schools' argument that they were like plaintiffs in previously decided high court cases, such as West Virginia students forced to recite the pledge of allegiance and salute the flag or New Hampshire motorists made to display the state's "Live Free or Die" motto on their license plates. In both those cases, the Supreme Court had earlier found that state governments had violated the Constitution by requiring compliance from the students and motorists.
"There is nothing in this case approaching a government-mandated pledge or motto that the school must endorse," Roberts wrote.
The chief justice delivered a caustic rebuke to the law schools and law professors who brought the case. "Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah's Witness to display the motto 'Live Free or Die' and it trivializes the freedom protected in [those earlier cases] to suggest that," he wrote.
Justice Samuel Alito abstained from the decision because he was not on the court when the case was argued three months ago.
The decision was a major win for the military, whose relations with academia have frequently been rocky since the Vietnam War era when protests against the war and the U.S. armed forces raged on the nation's campuses.
"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," the Defense Department said in a statement.
The department "is not asking for special treatment or seeking to compel or suppress free speech," the statement continued. "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."
Some Chicago-area academics voiced their disappointment in the decision.
Steven Greenberger, associate dean of DePaul University's law school, said, "What we have been doing is allowing military recruiters on campus, but taking ameliorative measures because we disagree with the military's stance with respect to discrimination in its hiring practices. It's unfortunate that we are being forced … to permit recruiters to come to campus who engage in discrimination that is inconsistent with our values."
David Yellen, dean of the Loyola University Law School in Chicago, said, "There is going to be a lot of unhappiness about our essentially being forced to comply with the military's policy."
At issue was the interpretation of what's known as the Solomon amendment, named after former New York GOP Rep. Gerald Solomon, who died in 2001. The law requires universities to provide military recruiters with the same access to campuses and students that non-military recruiters receive, or face loss of federal aid if they do not comply.
The schools argued that allowing military recruiters on campus would conflict with their non-discrimination policies, given the military's "don't ask, don't tell" policy. That policy requires that homosexuals not reveal their sexual orientation. If they do, it can be grounds for separation from the military.
When military recruiters visit the DePaul campus twice a year, university administrators take several steps to tell students that they disagree with the military's policy on sexual orientation. On days when military recruiters interview students, the university invites speakers to discuss the Solomon Amendment and the military's "don't ask, don't tell" policy.
And while the university provides lunch to other employers recruiting on campus, military recruiters do not get that perk.
At Loyola, employers who interview students are required to sign a non-discrimination statement. When military recruiters come to campus, they cross out the section on sexual orientation, Yellen said. He said that a notice is posted in the career services facility, telling students that the military does not comply with all the requirements of the university's non-discrimination policy.
Meanwhile, Northwestern University has never treated military recruiters differently from other employers, spokesman Al Cubbage said. Unlike many other top-tier universities and law schools, Northwestern did not join the Forum for Academic and Institutional Rights Inc., or FAIR, the group that filed suit against the Defense Department.
The court said that schools still have freedom of speech even when they abide by the Solomon amendment. "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 the military's policies," Roberts wrote.
Michael Gerhardt, a constitutional law professor at the University of North Carolina, said, "The ultimate importance of this… I think what the chief justice in the opinion is saying is nobody's forcing those schools to take money. You're not required or under duress to take federal money. But if you do take federal money, some strings come attached."
James reported from Washington and Cohen from Chicago.
Copyright © 2006, Chicago Tribune
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