WASHINGTON (ABP) — A unanimous Supreme Court said March 6 that law schools, no matter how distasteful they find the military's anti-gay policies, cannot claim their First Amendment rights are being violated by a law that requires them to allow on-campus military recruitment if they receive federal money.
The court's ruling came in a case over the 2004 Solomon Amendment, a series of conditions Congress has attached since the 1990s to bills that include funding for law schools. It requires the schools to give access to job recruiters from branches of the armed services “that is at least equal in quality and scope” to the access given to other recruiters.
Many law schools began refusing to allow the military's Judge Advocate General corps, which hires about 400 law graduates annually, equal access to recruiting on campus after 1991. That year, the Association of American Law Schools began requiring its member institutions to adhere to non-discrimination policies that included sexual orientation.
At the time, the military banned all homosexual soldiers. It continues to ban soldiers who are open about their sexual orientation.
The latest case came after a coalition of law schools sued Defense Secretary Donald Rumsfeld over the amendment, claiming it violated their First Amendment rights to freedom of speech and association by forcing them to appear to endorse the military.
But the unanimous ruling in Rumsfeld v. Forum for Academic and Institutional Rights, written by Chief Justice John Roberts, said the schools were not being forced to say anything as a condition of receiving the funding.
“As a general matter, the Solomon Amendment regulates conduct, not speech,” Roberts said. “It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say.”
Roberts noted that, in cases the court has decided requiring public schools to offer equal access to religious clubs, the court has determined that children can differentiate between school-endorsed speech and private or independent kinds of speech.
“We have held that high-school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so,” he wrote. “Surely students have not lost that ability by the time they get to law school.”
Gay-rights groups, while not surprised by the ruling, criticized it nonetheless. Joe Solmonese, president of the Human Rights Campaign, said the ruling should provide policymakers with an opportunity to re-evaluate the very military policy that caused the law schools to protest on-campus recruiters in the first place.
“With substantial support for overturning 'Don't Ask, Don't Tell,' it's past time for the military to level the playing field,” Solmonese said, in a prepared statement. “Americans don't care if the person who catches Osama bin Laden is gay or straight; they just want him caught.”
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