WASHINGTON – The military has a right to recruit on college campuses and at law schools nationwide, the Supreme Court ruled Monday, despite the Pentagon’s policy of excluding openly gay men and women from its ranks.
The justices unanimously rejected a free-speech claim brought by some law schools and professors who said they should not be forced to aid an employer who discriminates against job applicants because of their sexual orientation.
In his first major opinion for the court, Chief Justice John Roberts called this legal claim a stretch. The decision upheld the Solomon Amendment, in which Congress said that colleges and universities that take federal money must give the Pentagon the same right to recruit on campus as other employers enjoy.
“The Solomon Amendment regulates conduct, not speech,” Roberts said. “It affects what law schools must do – afford equal access to military recruiters – not what they may or may not say. … (It) neither limits what the law schools may say nor requires them to say anything.”
But in ruling that schools must provide the military the same access to students as they would for any other recruiters, the justices noted that schools are still free to protest their presence on campus.
Justice Samuel Alito, the court’s newest member, did not take part in the case.
So thorough was the court’s rejection of the arguments that it ruled Congress could have achieved equal access not only indirectly, by threatening a funding cutoff, but also directly, through legislation based on its constitutional power to raise military forces.
In fact, the court suggested in passing, even colleges and universities that do not receive any federal funding could be compelled by Congress to allow military recruiters.
“Congress’ power in this area is broad and sweeping,” Roberts wrote, “and there is no dispute in this cases that it includes the authority to require campus access to military recruiters.”
Colleges and universities did not challenge the law. The law faculty at several dozen schools, however, including Stanford, New York University, Georgetown and the University of San Francisco, joined a lawsuit to challenge the measure as unconstitutional.
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