Schools Win Battle With Defense Department Over Recruitment

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The New York Sun

PHILADELPHIA – An appeals court yesterday 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 known as the Solomon Amendment 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 that the government’s threat to yank 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, and no compelling governmental interest has been shown to deny this freedom,” the court wrote. “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.”


The judges added that the law might have had the unintended effect of hampering recruiting by engendering ill will among potential recruits.


By a 2-1 vote, the panel overturned an earlier decision by a federal judge that the people 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. Yesterday’s ruling represented the first time a court had enjoined the government from enforcing the law.


The Justice Department, which represented the government in the case, said it was examining the decision.


An agency statement said: “The United States continues to believe that the Solomon Amendment is constitutional. As we argued in our brief, we believe that Congress may deny federal funds to universities which discriminate and may act to protect the men and women of our armed forces in their ability to recruit Americans who wish to join them in serving our country.” One judge on the panel, Ruggero John Aldisert, wrote a stinging dissent, saying he was disturbed that law schools would, “as an academic exercise,” ignore the consequences that a recruiting limit would have on the military’s ability to compete with well-heeled legal 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,” Mr. 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 New York Sun

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