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 25 law schools, including Yale, that restricted recruiters in protest of the Pentagon's policy of excluding openly gay people from military service.
That ruling, by the Philadelphia-based third U.S. circuit court of appeals, invalidated a 1994 federal law requiring law schools to give the military full access or else lose their federal funding. The appeals court ruled that 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 law school coalition, 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 as long as they are willing to forgo federal
research dollars, which amount to hundreds of millions at some schools.
"The Solomon Amendment reflects Congress's 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 third circuit disagreed. It voted 2-1 to ban enforcement of the Solomon Amendment pending a full trial because of a "reasonable likelihood" the law would be found unconstitutional.
In its decision, the third 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 third circuit said.
The Bush administration's appeal has drawn the backing of Republican California representative Richard Pombo, 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 originally 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 9/11 terrorist 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 suits challenging the law. Earlier this year a U.S. district judge in Bridgeport, Conn., ruled that Yale Law School had a right to bar military recruiters from its job interview program, and similar cases are pending elsewhere. The Supreme Court case is Rumsfeld v. Forum for Academic and Institutional Rights.(AP)