Outside the Beltway

Court Allows Universities to Bar Military Recruiters

James Joyner · Monday, November 29, 2004 · 6 comments

Court Allows Universities to Bar Military Recruiters [RSS] (NYT)

Universities may bar military recruiters from their campuses without risking the loss of federal money, a federal appeals court in Philadelphia ruled today. The suit was brought by an association of law schools and a group representing hundreds of legal scholars seeking to help universities and colleges that want to keep military recruiters off their campuses because they object to the Defense Department’s policy of excluding gay men and lesbians from military service.

A 1995 law, known as the Solomon Amendment, bars the federal government from disbursing money to colleges and universities that obstruct campus recruiting by the military. As amended and interpreted over the years, the law prohibits disbursements to all parts of a university, including its physics department and medical school, if any of its units, like its law school, make military recruiting even a little more difficult. Billions of dollars are at stake, and no university has been willing to defy the government. Indeed, several of the law schools that are members of the Forum for Academic and Institutional Rights, the group that sued to block the new law, have not been publicly identified.

Among the institutions willing to be named are the law schools of New York University and George Washington University. The law faculties of Stanford, Georgetown and several other law schools are also members of the group. E. Joshua Rosencranz, who represents the plaintiffs in the suit, said the reluctance of several of his law school clients to be identified publicly was driven by fear. “They don’t want retribution that is exacted behind closed doors by faceless bureaucrats and vindictive politicians,” Mr. Rosencranz said.

The 2-to-1 decision in Philadelphia today, by the United States Court of Appeals for the Third Circuit, said the law violates the schools’ First Amendment rights in two ways. Citing a 2000 decision of the United States Supreme Court that said the Boy Scouts have a First Amendment right to exclude gay scoutmasters, the appeals court said the law schools have a First Amendment right to convey a message opposing discrimination against gays by excluding military recruiters. The appeals court also said that the presence of military recruiters on campus forces universities to convey a message with which they disagree. That is a form of compelled speech, the court said, prohibited by the First Amendment.

The court’s rationale here is plainly idiotic and I expect it to be overturned by the Supreme Court. Just like the Boy Scouts, private schools have the right to limit their association and bar groups that they adjudge discriminatory against homosexuals. Bob Jones University does that sort of thing in reverse. As a result, however, Bob Jones University gets denied federal funding. The Supreme Court upheld that ban in 1983.

Further, the federal government isn’t compelling the schools to even tacitly agree with the Defense Department’s policy on gays. The school could hold symposia condemning the practice, allow school-sanctioned groups to protest the policy, and so forth. They merely have to allow military recruiters access to school grounds to exercise their speech rights. And, if they find that burden too onerous, they can merely forego subsidy from the federal taxpayer.

Moreover, it’s not entirely clear to me how the plaintiffs had the standing to sue. If, as the article states, no school has dared defy the ban, then no school has been denied federal funds as a result of the Soloman Amendment. How then is there a case in controversy?

Update (11/30 1034): Colleges Can Bar Army Recruiters (NYT)

A dissenting judge, Ruggero J. Aldisert, appointed by President Lyndon B. Johnson, said the decision was misguided, particularly in wartime. “What disturbs me personally and as a judge,” Judge Aldisert wrote, “is that the law schools seem to approach this question as an academic exercise, a question on a constitutional law examination or a moot court topic, with no thought of the effect of their action on the supply of military lawyers and military judges.” “No court heretofore has ever declared unconstitutional on First Amendment grounds any Congressional statute specifically designed to support the military,” he added. “It bears note that the military’s policy against homosexual activity has been adjudged by a number of our sister courts of appeal not to violate the Constitution.”

Judge Aldisert took issue with the majority’s First Amendment analysis, noting that nothing in the law forbade the law schools to criticize the military’s policy on gays.

Howard J. Bashman, who helped write a supporting brief on behalf of students who favored the law, said the decision would hurt the military and the public. “A ruling of this sort will cause the military to end up with a lower quality of lawyer,” Mr. Bashman said. “These lawyers are involved in targeting decisions and in decisions about how prisoners have to be treated.”

Interesting. Aldisert and Bashman both make excellent points. As does “Captain Ed” Morrissey:

The Third Circuit operates from the belief that universities somehow have an entitlement to federal funds, a judgment that makes a mockery of Congress’ control of federal expenditures.

Yep.