Court backs military recruiters

In a blow to law schools and gay rights advocates, the Supreme Court reversed a lower court ruling yesterday, voting unanimously to uphold a law that requires colleges that accept federal funds to allow military recruiters access to their campuses.

The law schools had sued the federal government over objections to the Pentagon's "don't ask, don't tell" policy, which bars openly gay men and women from serving in the military.

The court's decision yesterday in Rumsfeld v. FAIR dismissed the schools' claim that the Solomon Amendment, the law that requires they provide access to military recruiters, violated the schools' free speech and free association rights.

"The Solomon Amendment neither limits what law schools may say nor requires them to say anything," Chief Justice John Roberts wrote for the court. "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."

"A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message," Roberts added.

The ruling is not expected to have a significant impact on universities in the immediate future, as all but three law schools are already complying with the Solomon Amendment's requirements, even as they question the law's constitutionality.

Though Princeton was not party to the lawsuit, the military's presence on campus has recently become an issue. Last year, a group of students petitioned the USG to hold a referendum that, if passed, would have urged Nassau Hall to eliminate support for employers that violate the University's nondiscrimination policy — including military recruiters and ROTC.

The referendum was eventually tabled after discussions between the organizers and USG officials, and the University has not changed its policy permitting military recruiters and ROTC on campus, citing student interest in military service.

Though this outcome had been expected, the 8-0 decision — which Samuel Alito '72, the newest member of the court, did not participate in — is remarkable because of the judges' unanimity, court observers said.

"It was a complete knockdown on a controversial question," University politics professor and constitutional scholar Robert George said. "It's really quite astonishing."

George added that he was surprised that none of the court's liberal justices opted to write a concurring opinion to Roberts' opinion for the court. "The reason I would expect a concurrence from the liberal justices would be to kind of soften the blow for the losers to indicate ... that they themselves interpreted the opinion narrowly," George said.

Chai Feldblum, a board member of the Forum of Academic and Institutional Rights (FAIR), the coalition of law schools that sued the government, said she was "completely shocked" at the unanimous opinion.

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"Obviously, I'm disappointed with the legal outcome, but I mostly consider this as a call to arms for the administrations of law schools and universities to respond to the military's discriminatory message with a message of nondiscrimination and justice," Feldblum said.

The Department of Defense, however, praised the outcome of the decision, saying it "is not asking for special treatment or seeking to compel or suppress free speech."

"We simply want to be able to compete on an even playing field for the best and brightest that our nation's universities have to offer," Pentagon spokeswoman Lt. Col. Ellen Krenke said in an email. "Equal access to law schools, and all schools for that matter, for our recruiters is crucial to ensuring we attract a diverse and highly qualified pool of applicants," she said.

George noted that yesterday's ruling in the case followed a long precedent of the court deferring to the legislative branch on matters concerning the military.

Indeed, Roberts wrote in the opinion that "Congress' power in this area is broad and sweeping, and there is no dispute in this case that it includes the authority to require campus access for military recruiters."

Looking to the future, Feldblum said the core issue remains reversing the Pentagon's "don't ask, don't tell" policy, so gay men and women can serve openly in the military. "The issue here has always been 'don't ask, don't tell.' That [policy] needs to get repealed, either by being invalidated by the Supreme Court or by Congress changing the law," she said.

George added that if change were to come, it would most likely originate in Congress, not the Supreme Court. "I certainly don't expect 'don't ask, don't tell' to be struck down by the Supreme Court," he said, adding that "it's a policy that the military believes in very strongly and has lobbied Congress very hard on."

For its part, the Pentagon placed responsibility for the policy with Congress.

"The Department of Defense policy on homosexual conduct in the military implements a federal law enacted in 1993," Krenke, the Pentagon spokeswoman, said. "The law would need to be changed to affect the department's policy."