Legal Eagles: Law Schools Don’t Convince the Supreme Court

What do law students, army recruiters, and gay rights activists have in common? Rumsfeld v. Forum for Academic and Institutional Rights, a case decided by the Supreme Court that brings all of these groups together.

What’s the ruling?

The court ruled unanimously to uphold a law that requires federally-funded universities to allow military recruiters on campus. Some law schools had rejected the practice because of the military’s "don’t ask, don’ tell" policy, which prevents openly gay and lesbian people from joining the armed forces.

This relatively-small group of law schools, the Forum for Academic and Institutional Rights, joined the Association of American Law Schools to challenge the law passed in 1995 as part of the Omnibus Consolidated Appropriations Act. This law initially denied any funds from the Department of Defense to schools that barred military recruiters from campus.

The following year, Congress extended this law, called the Solomon Amendment for one of the representatives that championed the legislation, to include funds from the Departments of Education, Labor, and Health & Human Services. Defense Department regulations adopted in 2002 toughened the law even more by revoking federal grants to an entire university if only one of the university’s subdivisions (its law school, for example) runs afoul of the law. In 2005, Congress amended the law to explicitly state that military recruiters must be given as much access as prospective employers.

Violating this amendment amounts to serious consequences for schools: forfeiting all federal funding, which for some equals hundreds of millions of dollars.

What are the arguments?

The law schools argued that the Solomon Amendment conflicted with the Association of American Law Schools requirement that all accredited law schools adhere to a nondiscrimination policy on sexual orientation. Further, they said, the law limited their freedom of speech by making it seem that the schools were endorsing the military’s policy when they in fact oppose it.

Eight justices disagreed with this argument though, and in his ruling, Chief Justice John G. Roberts explained that military recruitment was "not an expressive activity," and therefore could not compel or limit expression. Further, he explained, the law does not prohibit schools from sponsoring forums or encouraging protests of the policy.

Roberts also shot down the schools’ proposal to exclude from campus any employers who did not have a nondiscrimination policy that protected gays and lesbians. He focused on the vote of the majority in Congress rather than a court reading of equal civil rights as the guiding principle for this issue. "That is rather clearly not what Congress had in mind," he said, "it would render [the Solomon Amendment] a largely meaningless exercise."

What do you think?

Do you think that army recruitment on college campuses is contradictory to schools’ antidiscrimination policies? If so, what should be done? Is it fair for Congress to take away funding from schools that discourage military recruiters?

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Posted on: 3/24/2006