Colleges Can Bar Military Recruiters
Associated Press
November 30, 2004

PHILADELPHIA - A federal appeals court on Monday barred the Defense Department from withholding funds from colleges and universities that deny access to military recruiters.

The 3rd U.S. Circuit Court of Appeals said a decade-old federal law which allows withholding the funds infringes on the free speech rights of schools that wish to limit on-campus recruiting in response to the military's ban on homosexuals.

Ruling in a lawsuit brought by a coalition of more than a dozen law schools, a three-judge panel said the government's threat to withhold funding amounted to compelling the schools to take part in speech they didn't agree with.

"The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives," the court wrote.

By a 2-1 vote, the panel overturned an earlier decision by a federal judge that those challenging the law were unlikely to prevail at trial.

The ruling affects all institutions of higher learning, but the case revolved around law schools because most had developed policies prohibiting discrimination on the basis of sexual orientation.

Monday's ruling represented the first time a court has barred the government from enforcing the law.

The Justice Department, which represented the government in the case, said it was reviewing its appeal options. "The United States continues to believe that the Solomon Amendment is constitutional," the agency said in a statement.

One judge on the panel wrote a stinging dissent, saying he was disturbed that law schools would ignore the consequences that a recruiting ban would have on the military's ability to compete with law firms for young talent.

"They obviously do not desire that our men and women in the armed services, all members of a closed society, obtain optimum justice in military courts with the best-trained lawyers and judges," Judge Ruggero John Aldisert said.

He said he disagreed with plaintiffs who argued that the schools were being asked to violate their own anti-discrimination policies by welcoming recruiters who won't take openly gay men and women.

The two-judge majority based its decision in part on an earlier Supreme Court ruling that the Boy Scouts of America could bar homosexuals from becoming scouts or troop leaders.

The court reasoned that if the Boy Scouts could legally reject gays because it had a core belief that homosexuality is illegitimate behavior, then other institutions could impose an opposite type of restriction if it had a core value that discrimination on the basis of sexual orientation is wrong.