WASHINGTON—The Supreme Court said Monday it would settle a pivotal battle over whether colleges can ban Pentagon recruiters from campuses without losing federal funds. The case pits free speech and academic freedom against the power of the purse and the need for a strong national defense.
A coalition of 31 law schools says forcing them to accommodate military recruiters also forces them to endorse the Pentagon's discrimination against gays and lesbians, which is at odds with the colleges' anti-discrimination policies.
They say a 1994 law that threatens federal funding for colleges that ban military recruiters violates their rights to choose what ideas they embrace or support. Other employers who discriminate also are banned from recruiting.
The Third Circuit Court of Appeals in Philadelphia agreed with the colleges and declared the law unconstitutional.
But the government says the law, known popularly as the Solomon Amendment, is an essential tool for "effective recruitment ... to sustain an all-volunteer military, particularly at a time of war."
Government lawyers argue that the law doesn't violate the colleges' free speech rights because it doesn't force them to welcome recruiters. They can bar them and forgo federal funds.
"An educational institution covered by the Solomon Amendment has not been compelled to do anything," the government wrote in its brief asking the high court to intervene. "It has voluntarily chosen to enter into grant agreements or contracts with the United States and to accept funds under them, subject to a series of conditions. That is an entirely permissible quid pro quo in a bilateral relationship."
The case arises at least partly because of an increased need for recruitment following the terrorist attacks of Sept. 11, 2001.
The law has existed since 1994, and most colleges had worked out compromises by which they never banned military recruiters but also didn't give them the kind of choice access reserved for favored employers. Often, military recruiters were denied assistance from placement offices or were excluded from some recruiting events.
But after the terrorist attacks and subsequent wars in Afghanistan and Iraq, the Pentagon's need for recruits increased dramatically and the government began to pressure many law schools to stop their disparate treatment of military recruiters. They began to demand that they be given all the access nondiscriminatory employers were given, and in 2004, Congress amended the law to require as much.
The increased pressure—and threats of withheld funding—led the coalition of 31 law schools to resist and file the litigation at issue before the high court now.
"For decades, law schools have practiced the values they preached by promulgating, and abiding by, anti-discrimination policies," the coalition said in its brief to the high court. "Such policies direct law school personnel not to support or assist any employer that refuses to certify it has a policy against invidious discrimination."
The coalition says the government is illegally using its purse strings to coerce the schools into abandoning their principles.
"More than four decades ago, (the Supreme Court) announced the principle that applies to this sort of condition: In the context of civil liberties, the government cannot attach strings to a benefit to `produce a result which (it) could not command directly,'" the coalition told the court.
Joshua Rosenkranz, the San Francisco-based lawyer who represents the coalition of law schools, said: "It's a question of institutional autonomy and who gets to decide what gets said in a private forum. I was asked by the lower courts if it would be different if universities were excluding the military because of their objection to the war, and I said no. It's been true for decades that government may not force private citizens to disseminate the government's message, for whatever reason."
The coalition—and the federal appeals court—also relies heavily on a comparison between this dispute and one involving the Boy Scouts' ban on homosexuals.
The high court said in that case that forcing the Scouts to include gays as scout leaders would force them to endorse a message of tolerance with regard to homosexuality, in violation of their free speech rights.
The government says that comparison is wrong.
Unlike the Boy Scouts issue, "the Solomon Amendment is not concerned with an institution's method of determining its own internal composition and organization," the government said in its brief. "Recruiters are not a part of the institution itself and do not become members through their recruiting activities."
The court will hear the case in the fall and likely decide it by June 2006.
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(c) 2005, Knight Ridder/Tribune Information Services.
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