By Lisa Keen
WASHINGTON – It was an expected outcome, but not a good one.
The U.S. Supreme Court ruled unanimously this week that universities that accept federal funding must accept military recruiters. In doing so, it looked back at two previous Supreme Court decisions in gay-related cases – involving Boy Scouts and parade contingents- and justified opposite results in the military's situation.
Writing for the court, new Chief Justice John Roberts Jr. led with a position taken by Justice Antonin Scalia during oral arguments – that the Constitution's provisions that Congress "provide for the common Defence," "raise and support Armies," and "provide and maintain a Navy" include "the authority to require campus access for military recruiters."
The opinion came March 6 in the case of Rumsfeld v. Forum for Academic and Institutional Rights (FAIR). The case was won at the Third Circuit U.S. Court of Appeals level by FAIR, a coalition of law schools. The schools attempted to apply their non-discrimination policies, including a ban on sexual orientation discrimination, to all employers, including the U.S. military, seeking to recruit students on campus.
Specifically, the lawsuit challenged the constitutionality of laws passed by Congress between 1999 and 2005 to deny federal funding to any school which refused to allow military recruiters on campus. (The laws are often referred to as the "Solomon Laws" because they were initially introduced by Republican U.S. Rep. George Solomon of New York.)
In writing for the court, Chief Justice Roberts said that universities cannot escape the intent of the Solomon laws by applying their non-discrimination policies to the military the same as they apply them to other employers.
"It is insufficient for a law school to treat the military as it treats all other employers who violate its nondiscrimination policy," wrote Roberts. "Under the statute, military recruiters must be given the same access as recruiters who comply with the policy."
In other words, military recruiters get special rights. While all other employers must comply with a university's non-discrimination policy to gain access to students on campus, the military does not.
FAIR had argued that forcing the universities to allow the military on campus in violation of their non-discrimination policies forced the universities to support the military's policy of discriminating against gays. Among other things, noted FAIR, universities would be compelled to send out emails and other postings to students, alerting them that military recruiters would be on campus. That, they argued, was a violation of their First Amendment rights of speech and association.
Speech on parade
But Roberts said the Solomon law "neither limits what law schools may say nor requires them to say anything."
"Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds," wrote Roberts. Compelling a school to send out or post a statement of fact – that military recruiters are coming to campus – is "a far cry from the compelled speech," such as requiring students to say the Pledge of Allegiance.
The high court acknowledged that it has put limits on "the government's ability to force one speaker to host or accommodate another speaker's message." In a 1995 decision – Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston – the Supreme Court ruled that the Massachusetts human rights law prohibiting discrimination based on sexual orientation could not be used to force the organizers of an annual St. Patrick's Day parade in Boston to include an openly gay contingent.
In a bit of irony, several gay legal organizations and the ACLU submitted a brief in Rumsfeld v. FAIR on behalf of the universities, arguing that the Hurley decision supports the schools' position. In the Hurley opinion, Justice David Souter wrote that the gay contingent could be refused admission "just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members."
But the Hurley decision was about a parade, said Roberts, and parades are "a form of expression" such that forcing the inclusion of a contingent amounted to changing that expression.
"Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive," wrote Roberts. "… A law school's recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter's message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school."
"Nothing about recruiting," continued Roberts, "suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies."
Freedom to exclude
Roberts' opinion also discussed the implications of the Supreme Court's 2000 decision in Boy Scouts v. Dale, where the court said that the scouting organization has a First Amendment freedom of association right to exclude gays from membership.
Just as the Boy Scouts of America organization contended that it had the freedom of expression right to exclude gays, the FAIR law schools argued that they had the freedom of expression right to exclude military recruiters. In Boy Scouts v. Dale, the Supreme Court held that the New Jersey non-discrimination law could not compel the Boy Scouts to accept a gay person as a scoutmaster because to do so, the high court said, would alter the "message" of the Boy Scouts.
Roberts said there was a difference between the two situations.
"Law schools," he said, "'associate' with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students – not to become members of the school's expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school "'to accept members it does not desire.'"
The court's newest justice, Samuel Alito Jr., did not participate in this case, which was argued in December.
The Rumsfeld v. FAIR decision was the first gay-related case before the Supreme Court since Chief Justice Roberts replaced the late Chief Justice William Rehnquist at the beginning of the 2005-06 session.
Interestingly, when Roberts needed to refer to gay people in this decision, he referred to them as "homosexuals." Since 1995, justices writing majority opinions on gay-related issues – including the ultra-conservative Rehnquist, in writing the majority opinion in Boy Scouts v. Dale – have generally used the more respectful term "gay."
Meanwhile, Lambda Legal Defense and Education Fund, which joined the ACLU brief in the FAIR case, said it would soon offer suggestions to law schools and law students on what actions they can legally take to protest the presence of military recruiters on campuses.
