The New York Times
May 3, 2005

Justices Accept a 'Don't Ask, Don't Tell' Recruiting Suit

By LINDA GREENHOUSE
 

 

WASHINGTON, May 2 - The Supreme Court agreed on Monday to decide whether Congress can constitutionally withhold federal money from universities that show their support for gay rights by restricting access to campuses by military recruiters.

The case is an appeal by the Bush administration from a federal court decision last November. That ruling barred enforcement of the measure, known as the Solomon Amendment, on the ground that it had the effect of coercing universities into endorsing the military's "don't ask, don't tell" personnel policy.

Ruling in a lawsuit brought by a coalition of law schools and law professors, the United States Court of Appeals for the Third Circuit held that because the Solomon Amendment required law schools to "propagate, accommodate and subsidize the military's expressive message" of disapproval of homosexuality despite the schools' commitment to nondiscrimination, the measure probably violated the schools' First Amendment rights.

The Third Circuit, which sits in Philadelphia, issued a preliminary injunction barring the government from enforcing the Solomon Amendment. It then granted a stay of its order to enable the administration to appeal to the Supreme Court. There has not yet been a trial or final judgment in the case, Rumsfeld v. Forum for Academic and Institutional Reform, No. 04-1152.

Meanwhile, another challenge to the Solomon Amendment, this one brought by a majority of the faculty of Yale University's law school, was successful in Federal District Court in Connecticut. In February, Judge Janet C. Hall declared the measure unconstitutional and barred its enforcement against Yale.

Rather than take the usual appellate route, the plaintiffs in the Yale case brought the case directly to the Supreme Court last week, advising the justices that because their case, Burt v. Rumsfeld, No. 04-1434, had gone to final judgment on a full record, it presented a better vehicle for deciding the issue.

For example, it is undisputed in that case that the Department of Defense threatened to withhold $300 million in university-wide federal grants if the law school did not give military recruiters access to law students on the same basis as other potential employers, all of whom must subscribe to the school's nondiscrimination policy. The justices have not yet acted on the Yale case petition.

By contrast, there has been little factual development in the case the court accepted. Most of the 26 law schools that joined the coalition, which is called Faculty for Academic and Institutional Rights and known by the acronym FAIR, have concealed their identities during the litigation out of concern for their financial exposure.

As it reaches the Supreme Court, the FAIR case is the latest to frame an issue of gay rights in the context of the First Amendment's guarantee of freedom of speech. In recent years, the court has upheld the right of the Boy Scouts and of the organizers of the Boston St. Patrick's Day parade to exclude gay men and lesbians as an aspect of the right of "expressive association" not to carry or convey an unwanted message.

In this case, advocates for gay rights, rather than opponents, are the ones invoking the freedom of association. Since 1991, the American Association of Law Schools has required its 166 member schools to insist that any prospective employer seeking to use a law school's services for recruiting students must adhere to a policy of not discriminating on the basis of sexual orientation.

In ruling for the plaintiffs in the FAIR case, the Third Circuit took as its guidepost the Supreme Court's ruling in 2000 that the Boy Scouts could not be required to accept gay men as scoutmasters.

"Just as the Boy Scouts endeavored to inculcate youth with the Boy Scouts' values both expressively and by example, the law schools endeavor to inculcate their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies," the appeals court panel said in its 2-to-1 decision.

In its Supreme Court appeal, the administration maintains that the analogy to the Boy Scouts case is misplaced because "the Solomon Amendment is not concerned with an institution's method of determining its own internal composition and organization." Rather, the administration's petition said, "the role of recruiters is to attract students to seek employment outside the school." The law school remains "free to make appropriate disclaimers or to express its disagreement" with military policy, the petition said.

The Third Circuit also found that the threat of withholding millions of dollars in federal grants had the effect of compelling the universities to speak on the military's behalf. But "the Solomon Amendment does not compel anything, let alone require law schools to convey any antagonistic message," the administration's petition said, because universities do not have to accept the federal money.

Further, "there is no realistic danger that the statements of military recruiters will be uniquely attributed to the school, and the school is free to make its own views clear," the administration said.

Congress first adopted the Solomon Amendment in 1994, prompted by the growing resistance among law schools to permitting recruitment of students for the judge advocate general's corps. Many law schools complied by providing access, but not administrative support. In 2001, a new Pentagon policy required that military recruiters be treated exactly like all others, a change that in the view of the law schools made compromise impossible. Last year, Congress enacted this administrative policy into law.