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Court supports military in dispute over ‘don’t ask, don’t tell’

WASHINGTON (BP)–The U.S. Supreme Court unanimously ruled March 6 that the federal government may bar funds to universities that refuse to assist military recruiters because of the schools’ disagreement with the Pentagon’s “don’t ask, don’t tell” policy on homosexuals.

The justices upheld the Solomon Amendment, a congressional measure first passed in 1994 that requires schools that receive federal funds to treat the U.S. military the same as they treat other employers doing recruiting on campus. In so doing, the high court rejected the arguments of a coalition of law schools and professors that the amendment violates their First Amendment rights of speech and association.

The coalition, operating as the Forum for Academic and Institutional Rights (FAIR), contended the military’s “don’t ask, don’t tell” policy contradicts their non-discrimination policies, which include “sexual orientation” as a category. Homosexuality is a category under “sexual orientation.” The Pentagon’s “don’t ask, don’t tell” policy provides for the removal of service members when they acknowledge they are homosexual or when evidence is found of homosexual behavior.

In his opinion for the court, Chief Justice John Roberts said the amendment “neither limits what law schools may say nor requires them to say anything. As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do –- afford equal access to military recruiters –- not what they may or may not say.”

Requiring a school to post notices and send e-mails about interviews with military recruiters does not violate its rights, he wrote.

“Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance” to the flag, the chief justice said.

Roberts cited Supreme Court decisions upholding equal access for Christian groups in high school and college in saying permitting military recruiters on campus does not communicate agreement with them by a law school.

“We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy,” Roberts wrote, adding with what seemed at least a hint of sarcasm, “Surely students have not lost that ability by the time they get to law school.”

The amendment also does not infringe on the right of a student or professor to choose with whom to associate, he said.

“Students and faculty are free to associate to voice their disapproval of the military’s message; nothing about the statute affects the composition of the group by making group membership less desirable,” Roberts wrote. “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.”

The government, he said, has a substantial interest in producing military forces. Recruiting advances that interest, Roberts said.

American Legion National Commander Thomas Bock commended the decision, saying in a written statement, “We are relieved that the high court put this issue to rest once and for all. We applaud all the justices for their sound affirmation of a strong national security policy that will ensure that our military remains the very best in the world.”

New Associate Justice Samuel Alito did not participate in the opinion. He was not on the court when oral arguments were heard in December. Alito was confirmed to the court by the Senate Jan. 31

A federal judge rejected FAIR’s effort to block enforcement of the amendment, but the Third Circuit Court of Appeals, based in Philadelphia, Pa., reversed that ruling and granted a preliminary injunction for the law schools. The appeals court ruled Congress could not force the schools to surrender their free-speech rights in order to receive funds.

The case is Rumsfeld v. FAIR.

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