Colleges Can Bar Military Recruiters - BSA mentioned

[purcelce]

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.

 

 

[scoutingagain]

Talk about ironic.

 

 

[OldGreyEagle]

I saw this on TV, and I was thinking. Law schools exist because our society is based on the rule of law. The military is charged with keeping our society safe from those who would seek to change the basis of our society.

 

Therefore, by barring military recruiters from Law Schools, the Law Schools prohibit the very instrument that allows them to exist from visiting.

 

YIKES!

[acco40]

To put it in "bunny talk" for those who think too deeply about such issues: Should private organizations be able to discriminate based on sexual orientation without fear of government reprisals? The Supreme Court said yes for the both BSA and for Law Schools. Makes perfect sense to me.

 

 

The devil is always in the details and I still question the exactly how "public" the BSA and most law schools really are.

[Hunt]

I think this is a pretty interesting case. My prediction is that the Supreme Court will overturn it if it's appealed. Here's a quote from the Third Circuit's decision: "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." How is this case different from the denial of government money to colleges that practice racial discrimination? It's no different, except for the evaluation of whether there is a "compelling governmental interest." A court that wants to (like maybe the current U.S. Supreme Court) will simply find that there is a compelling governmental interest in the ability of the U.S. armed forces to recruit on college campuses.

I'm a pretty liberal guy, but I have to say I don't have a lot of problems the Solomon Amendment. If an institution doesn't like the government's policies, it doesn't have to take the government's money. That's what Bob Jones University did when it chose not to change its rules against interracial dating.

[hops_scout]

Of course, some of these schools are FEDERALLY funded in some way or another. If they are going to disallow recruiters, should the government disallow funding to them?

[NJCubScouter]

Hops, that is what the case is about (see the first paragraph of the article that was posted.)

 

Of course, it is a little more complicated than that. I went to read the opinion itself but it is 102 pages long, so I don't know when that is going to happen. I do have it saved to my computer and will try to find it again so I can post a link directly to it. I read a summary of the opinion and it does seem ironic that the BSA v. Dale case was used to the benefit of the law schools and the other plaintiffs. Someone mentioned public v. private, well I am pretty sure that at least one of the law schools involved is part of a state university (that would be the one I went to), so it will be interesting to see what happens.

 

As for why the law schools would bar military recruiters, this is an issue that has been going on for at least 20 years. The schools in question would bar any recruiter that discriminates on the basis of race, gender, sexual orientation or any of the other standard list of factors. The military falls into that category because they exclude gays. As for my own opinion, I think that if push comes to shove, the military has to be permitted to recruit, but I also don't think they should exclude gay people, so that would be my solution.

[Proud Eagle]

I know the Brandies School of Law at the University of Louisville has a policy similar to the one involved here. (I was a student at U of L for a time, and while I was a student I was also a member of the Cardinal Battalion of the Army ROTC.)

 

Anyhow, the Law School was at one time the site of the battalions commissioning ceremonies for the new 2nd Lieutenants. However, after the law school created its new policy, the Professor of Military Science was told he could no longer have access to the law school's facilities due to the Army and DoD policies. So the ceremony was moved to the main library.

 

This is just an example of the sort of conflict going on at one state university. The law school is actually barring a part of another unit of the same university it is a part of from using its facilities. Totally ridiculous. How can a public state university bar its own students and faculty from using its facilities?

 

 

 

OK. That all was very nice but had little to do with this case. So, on to a more pertinent observation.

 

The BSA v. Connecticut case should have been used the Department of Defense as an example of a precedent indicating that while there may be a 1st Amendment right to choose who to associate with, or who to allow to recruit in your facilities, there is no protection against being penalized for taking that stance. These schools took a stance and incurred a penalty for doing so. They should be willing to live with the loss of funding that comes with that, just as DOD should be willing to accept be excluded from some places do to its polices.

 

Though I personally think the BSA v. Connecticut ruling wasn't so good, and I don't think this case will ever be concluded in such a way as to exclude DOD from recruiting and withhold funding from the schools, though that would be the position that is consistent with the Connecticut decision.

 

What I think should happen is that DOD should be allowed to recruit at the public institutions and should therefore restore funding to those public institutions. The private institutions should remain free to exclude DOD on the understanding that doing so will mean losing this funding.

 

After all, how can one manifestation of the government by the people, for the people, and of the people, exclude another manifestation of that same government (and by so doing exclude the same people it is by, for, and of)? For one government entity to reject another government entity is in a since a form of rejecting its own identity.

[Hunt]

NJCubScouter, I think we're on the same page on this one--but perhaps the following hypothetical would make it even easier:

University X refuses to allow military recruiters on campus solely because the university has a policy against promoting "militarism." Presumably the Third Circuit would rule the same way in that case, because the university would be "forced" into "speech" with which it does not agree. But I just don't buy it--it isn't being forced to speak; it's simply being given the unpalatable choice of giving in or foregoing funds.

[NJCubScouter]

Hunt says:

 

University X refuses to allow military recruiters on campus solely because the university has a policy against promoting "militarism." Presumably the Third Circuit would rule the same way in that case, because the university would be "forced" into "speech" with which it does not agree.

 

I would not presume that. This is a situation where the recruiter is on campus, actually enforcing a discriminatory policy, because they say up front that they cannot accept someone who is openly gay (or maybe just gay, the military's version of "don't ask don't tell" is a bit murky.) As I said before, this was an issue when I was in law school, and I recall someone going into an interview with a military recruiter, saying they were gay, and being told they would not be accepted into the JAG Corps for that reason. There was a whole big protest after that with gay and straight students wearing pink-triangle armbands. Now I am sure some here will think the person was wrong to waste the recruiter's time just to "make a point," but that isn't really the issue. The issue is that the recruiter's presence and the subject of the "speech" are directly related, whereas in the case of a school being against against "militarism," the issue is not directly related to the recruiting.

 

But I say this without having read the case, which I want to try to do over the weekend, and see what actual conclusion I draw from it.

 

But I just don't buy it--it isn't being forced to speak; it's simply being given the unpalatable choice of giving in or foregoing funds.

 

The law under the constitutional "spending clause" gets pretty complicated. Generally the government can do whatever it wants as far as spending goes, and can tie whatever strings it wants. That is where we get such things as the national speed limit (for awhile), nationwide seat-belt laws, nationwide drinking age of 21, etc. These are all STATE laws, but the federal government said to the states, if your state law does not say what we want on this subject, you do not get any more federal highway funds. Similarly if a college is giving financial aid derived from federal sources to a male student over the age of 18, the school must require the student to show that he has registered for selective service, or the student (and the school) does not get the money. The military recruitment case, however, falls into an area of conflict with another constitutional provision, the Free Speech Clause. The plaintiffs in this case were probably arguing something like, what the federal government is doing is paying for "speech" it likes but not for "speech" it doesn't like, and that is a "burden" on the FIrst Amendment rights of the disfavored schools. I don't know if I agree with that, like I said, I have to read it first to see what the full reasoning is.

 

I also saw something on a legal web site that says that the future route of appeal for this case is somewhat uncertain. Normally the government would ask the entire Third Circuit Court of Appeals (which probably has between 10 and 15 active "voting" judges) to review the decision of the 3-member panel that decided this case. However, it appears that a majority of the full court has recused itself. I don't know why, but my wild guess would be that a majority of the judges may have attended law schools that are involved in the case. That would mean the Supreme Court is the next stop, but there is also an issue about whether Supreme Court review is available at this stage of the case, for technical reasons that I think would be pretty boring for a non-lawyer.

[NJCubScouter]

OK, here for whatever it's worth is a link to the actual opinion:

 

http://www.ca3.uscourts.gov/opinarch/034433p.pdf

 

As I said, it is 102 pages long -- and those are PDF pages, meaning it really is 102 pages long, so have fun reading it. Whether I actually do so or not, we shall see. (There are actually 2 opinions in there, the majority opinion and the dissenting opinion in the 2-1 vote.)

 

Here is a weblog ("blog") of one of the attorneys in the case (he was representing a "friend of the court" supporting the government's position, I am not sure who exactly, but in other words he was taking the position that the government can cut off funding to the law schools for banning the military recruiters.) It has a lot of commentary about this case, with other cases mixed in.

 

http://www.legalaffairs.org/howappealing/2004_11_01_appellateblog_archive.html

 

Here is one thing the attorney has to say, which is what I was summarizing earlier. You will notice the first-person reference to a notice he received from the Court, so just keep in mind, "me" below means him, not me:

 

The U.S. Supreme Court is the likely next stop for the Solomon Amendment case decided yesterday in the U.S. Court of Appeals for the Third Circuit: Normally, once a three-judge panel of a U.S. Court of Appeals decides a case, the losing party has the option to seek rehearing en banc before all non-recused active judges (or, in the Ninth Circuit, before a panel of eleven judges). In the Third Circuit, however, rehearing en banc is not available if a majority of the judges in regular active service is recused from hearing a case.

 

A notice enclosed with the copy of yesterday's Third Circuit ruling that the court sent to me by mail indicates that a majority of the Third Circuit's active judges is recused from the case. As a result, the U.S. Supreme Court is the one and only place where the federal government will have any realistic possibility of getting yesterday's ruling by a divided three-judge Third Circuit panel overturned.

 

Often the U.S. Supreme Court will refrain from hearing cases that involve the grant or denial of a preliminary injunction, because that relief will be superseded once the trial court issues its final adjudication. In this instance, however, that usual reluctance may not exist, because yesterday's Third Circuit ruling leaves little doubt how the case must be resolved on the merits in the district court.