Military Recruiters Not Welcome

Who ever would have thought that the THIRD Circuit would be leading the way in liberal leaning decisions. (I had to do a double take to make sure that they didn't mean the Ninth Circuit.)

Campuses May Bar Military Recruiters
By Esther Schrader
The Los Angeles Times

Tuesday 30 November 2004

A federal appeals court rules that universities' free-speech rights are incompatible with the Pentagon's policy on gays and lesbians.

Washington - Handing a significant legal victory to gay-rights advocates, a federal appeals court ruled Monday that academic institutions may restrict on-campus recruiting by the military because of the Pentagon's policy on gays and lesbians.

The 3rd U.S. Circuit Court of Appeals, based in Philadelphia, ruled that a federal law known as the Solomon Amendment infringes on the free-speech rights of schools by allowing the federal government to withhold funds from colleges and universities that deny access to military recruiters.

The preliminary injunction issued in one of four separate lawsuits filed by students and professors at law schools throughout the country found that by threatening to withhold federal funds from schools that do not accommodate military recruiters, the government was compelling them to take part in speech they did not agree with.

"The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom," the panel wrote in a 2-1 decision.

The court overturned an opinion by a federal judge in New Jersey who ruled a year ago that law schools must open their doors to military recruiters, even if the Defense Department's refusal to admit openly gay or lesbian individuals to military service offends a school's antidiscrimination policies.

"The court understood that if bigots have a 1st Amendment right to exclude gays, then enlightened institutions have a 1st Amendment right to exclude bigots," said E. Joshua Rosenkranz, lead counsel for the Forum for Academic and Institutional Rights, a coalition of more than 25 law schools - including those at Stanford University, New York University and Georgetown University - that filed suit against the Pentagon in September 2003.

The Pentagon can seek a review of the ruling from the entire 3rd Circuit or from the Supreme Court. Lawyers for the Pentagon did not return calls asking what their next step might be.

The controversy over military recruiting on law school campuses has simmered since the early 1990s, when schools began to extend their long-standing policies against campus recruitment by employers that discriminated on the basis of race and sex to those that did so on the basis of sexual orientation.

In 1994, Congress passed a defense authorization bill that included an amendment, sponsored by then-Rep. Gerald Solomon (R-N.Y.), allowing the government to withhold federal funds from institutions if they denied military recruiters access to students.

Faced with the possibility of losing hundreds of millions of dollars, almost all law schools backed down from their bans, allowing military recruiters on campus if invited by a student group or if they conducted interviews off campus.

But in December 2001, in the aftermath of the Sept. 11 terrorist attacks, the Defense Department added new teeth to the Solomon Amendment, establishing regulations that subjected entire academic institutions, rather than just their law schools, to the loss of federal dollars.

A year later, it began enforcing the new regulations in earnest, notifying schools that they were out of compliance with the law and faced a loss of funds if they did not provide military recruiters the same level of access to their students as that given to recruiters from the private sector.

The modern military relies heavily on lawyers, who form the Judge Advocate General's Corps and help commanders establish the legal basis for many of their decisions.

Some law school officials say they believe that the war in Iraq and the government's concerns about terrorism are driving its campaign for greater access to potential recruits. The Defense Department contends that it is just following the law.


U.S. Loses Ruling over College Bans on Military Recruiters
By Michael Dobbs
The Washington Post

Tuesday 30 November 2004

A federal appeals court yesterday prohibited the government from withholding funds from colleges and universities that refuse to cooperate with military recruiters because of the Pentagon's discrimination against gays in the armed forces.

In a 2 to 1 ruling, the U.S. Court of Appeals for the 3rd Circuit in Philadelphia blocked the government from enforcing a law known as the Solomon Amendment, which punishes universities that refuse to allow military recruiters on campus. The law was originally passed by Congress in 1996 but was not actively enforced before the beginning of President Bush's administration.

"This is a landmark decision," said Joshua Rosenkranz, lead counsel for a network of 25 law schools and 900 law professors who complained that the Solomon Amendment violated their First Amendment rights. "The court understood that, in a free society, the government cannot co-opt private institutions as government mouthpieces."

The court ruled that the Solomon Amendment violated the free-speech rights of schools that restricted on-campus recruiting in response to the military's ban on gays. By threatening to withdraw federal funds from schools that refused to cooperate with military recruiters, the court wrote, the government was compelling them "to express a message that is incompatible with their educational objectives."

Pentagon and Justice Department officials did not immediately return calls seeking reaction to the court ruling. The government can appeal the decision to either the Supreme Court or the full 3rd Circuit, but neither body is obligated to accept the appeal.

While the Solomon Amendment applies to all types of universities, law schools were most vociferous in objecting to what they viewed as the military's discriminatory policies against gay men and lesbians. Some law schools banned military recruiters from holding job fairs on campus, while others refused to cooperate in more minor ways. Similar lawsuits have been filed around the country.

The Pentagon sent letters in late 2001 to more than 20 law schools threatening to cut off federal funds to them and their parent universities unless they reversed their policies. Faced with this threat, the law schools begin cooperating with the Pentagon but filed complaints in federal court seeking to overturn the law.

"This is a big vindication of our efforts," said Kent Greenfield, a law professor at Boston College and founder of the Forum for Academic and Institutional Rights, one of the main plaintiffs in the case. "This ruling allows schools and universities around the country to refuse to be agents of military discrimination against some of their students."

Yesterday's ruling in a case originally brought by New Jersey law schools overturned a decision by a lower court judge and marked the first time an appeals court had blocked the government from enforcing the law. The Solomon Amendment, named after a Republican congressman from Upstate New York, in effect required law schools to choose between getting federal funds and following their own policies, which barred discrimination against students on the basis of sexual orientation.

Interesting ruling. I wonder if anyone will follow suit.

And from the American Bar Assocaition:

BOY SCOUTS CASE HELPS GAY RIGHTS CAUSE
3rd Circuit Ruling Won’t End Argument Over Military Recruiting at Law Schools
BY DAVID L. HUDSON JR.

Some First Amendment experts say this week’s 3rd U.S. Circuit Court of Appeals decision allowing universities to ban military recruiters from campus shows the indivisibility of First Amendment rights.

Others, however, say the First Amendment should not have trumped military needs.

The ruling by the Philadelphia-based court prevents enforcement of the Solomon Amendment—a federal law denying federal funding to schools that do not treat military recruiters as well as other recruiters.

The divided panel used Boy Scouts of America v. Dale, 530 U.S. 640 (2000)—which said the Boy Scouts had a First Amendment associational right to exclude a gay assistant scoutmaster from its organization—as the key legal precedent in ruling that law schools have a similar associational right to prevent military recruiters, who discriminate based on sexual orientation, from coming to campus. Forum for Academic and Institutional Rights v. Rumsfeld, No. 03-4433 (Nov. 29).

"The case was full of irony because in Dale, the U.S. Supreme Court said you could discriminate against a gay assistant scoutmaster, while here the Dale case is being used by people who convey a nondiscrimination message regarding sexual orientation," says Robert Richards, co-director of the Pennsylvania Center for the First Amendment at Penn State University. "It shows how the First Amendment cuts across what might be considered traditional liberal and conservative positions."

"It is one of those occasions on which a case that may seem to be uncongenial or may seem to have a bias turns out to be a principle or precedent that has broader implications," said Robert O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, based in Charlottesville, Va. "It really is a nice irony.

"The majority seemed to relish the use of Dale. Dale’s expansive view of expressive association turned out to be exactly what was needed to give law schools and organizations in the academic community a basis to resist a government policy."

First Amendment rights have often cut across ideological boundaries. During the civil rights movement, protesters often relied on a 1949 U.S. Supreme Court decision, Terminiello v. City of Chicago, 337 U.S. 1, that gave First Amendment protection to a man who gave a ranting speech full of racist and anti-Semitic references. In Terminiello, Justice William Douglas wrote that free speech "may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

The funding amendment, named after its sponsor, former Rep. Gerald Solomon, was proposed in 1994. As amended through the years, it requires schools to accord military recruiters equal treatment or lose federal funding.

The amendment has caused controversy at many law schools that have nondiscrimination policies. Such policies often prohibit job recruiting by prospective employers that discriminate based on race, color, religion, national origin, sex, handicap or disability, age or sexual orientation. The military’s "don’t ask, don’t tell" policy requires the discharge of service members who engage in homosexual acts, state that they are homosexual or marry or attempt to marry someone of the same sex.

A group of law schools, the Forum for Academic and Institutional Rights, sued the Department of Defense in September 2003, contending that the Solomon Amendment violated the First Amendment. The government filed a motion to dismiss on standing grounds. On Nov. 5, 2003, a federal district court in New Jersey rejected the government’s motion to dismiss but also rejected the plaintiffs’ motion for a preliminary injunction.

On appeal, the 3rd Circuit panel reversed the injunction decision 2-1, with Judges Thomas L. Ambro and Walter K. Stapleton in the majority and Judge Ruggero J. Aldisert in the dissent. According to Ambro, the law schools had an expressive association right to articulate and support their nondiscrimination policies.

"Just as the Boy Scouts believed that ‘homosexual conduct is inconsistent with the Scout Oath,’ the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness," Ambro wrote for the majority.

The majority also determined that forcing law schools to admit a recruiter who discriminates based on sexual orientation "violates the law schools’ First Amendment rights under the compelled speech doctrine."


"The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom," Ambro concluded. "While no doubt military lawyers are critical to the efficient operation of the armed forces, mere incantation of the need for legal talent cannot override a clear First Amendment impairment."

In dissent, Aldisert questioned what he termed the majority’s "all-pervasive approach that this is a case of First Amendment protection in the nude. …

"I would hold that Congress’ use of the spending power and fulfillment of the requirements to maintain the military under Articles I and II do not unreasonably burden speech and, therefore, do not offend the First Amendment," he wrote.

"This is a victory for liberty and equality," says New York-based attorney E. Joshua Rosenkranz, lead counsel for the coalition of law schools, in a statement. "It is a victory for conscience over compulsion, freedom of thought over thoughtless fiat. The court understood that if bigots have a First Amendment right to exclude gays, then enlightened institutions have a First Amendment right to exclude bigots."

Not all agree that the court’s analysis was correct. "We think the court majority analyzed the case under the wrong doctrine altogether," says Steven W. Fitschen, president of the National Legal Foundation, which filed an amicus brief in support of the government. "It should have been analyzed under the unconstitutional conditions doctrine and found not to constitute an unconstitutional condition."

To Fitschen, the far more appropriate Supreme Court precedent is not Dale but the library Internet filtering case, U.S. v. American Library Association, 539 U.S. 194 (2002). In that decision, the court ruled that a law tying federal funding to filtering of the Internet did not impose an unconstitutional condition on public libraries. Fitschen points out that the library filtering case was the chief legal precedent cited by the district court in refusing to grant a preliminary injunction.

"In ALA, the court noted that because libraries have traditionally excluded pornography from their collections, Congress was permitted to impose the filtering requirement," said the National Legal Foundation in its amicus brief. "Similarly, here, because universities have traditionally assisted students in obtaining employment, Congress can impose a requirement allowing recruiting for military employment."

Fitschen hopes the government will appeal, but a spokesman for the Department of Justice says options are still being considered. "We feel that the amendment is constitutional," says spokesman Charles Miller. "However, we have not decided what our next step is."

This is the first federal appeals court decision to examine the question. There are other Solomon Amendment challenges percolating in federal district courts in Connecticut (Student Members of SAME v. Rumsfeld and Burt v. Rumsfeld) and Pennsylvania (Burbank v. Rumsfeld).