- The Washington Times - Tuesday, March 7, 2006

The Supreme Court yesterday ruled against universities that had prohibited military recruiters on campus.

The justices unanimously upheld a 1996 federal law that permits the government to withhold funds from universities that deny military recruiters the same access to students that is allowed other potential employers.

“Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students,” Chief Justice John G. Roberts Jr. wrote for the court in his third opinion since being confirmed six months ago.

Several universities had banned military recruiters to protest the Pentagon’s policy against open homosexuality in the armed forces.

The ruling arrives as the Pentagon struggles to achieve recruiting goals for an all-volunteer military force facing the strain of prolonged deployments required by the ongoing war on terrorism.

The case grew from a suit brought by a coalition of law schools and professors, who argued that their First Amendment right of free expression was violated by the 1996 law on grounds that it forced them to associate with and promote the activities of military recruiters.

Chief Justice Roberts rejected that argument, saying, “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 chief justice said that the legal core of the case had nothing to do with the “don’t ask, don’t tell” policy and that allowing military recruiters at universities is paramount to attracting talent to the armed forces — particularly to the ranks of military lawyers.

Because he was not on the court in December when the case was argued, Justice Samuel A. Alito Jr. abstained from the ruling, which drew mixed reactions from court observers yesterday.

“This decision is particularly important given that our nation is at war,” said Senate Majority Leader Bill Frist, Tennessee Republican, who added the ruling “leaves no doubt that the United States military will continue to have equal access to all segments of our population … and will be able to recruit the best and brightest that America has to offer.”

The American Civil Liberties Union had filed a brief supporting the law schools, and ACLU legal director Steven R. Shapiro said universities “should not be punished by the loss of their federal funding merely because they apply the same nondiscrimination policies to the military that they apply to every other employer that seeks to recruit on campus.”

Nationwide, universities and colleges receive about $35 billion in federal funding annually.

Various universities have moved to bar military recruiters in the past, most notably during widespread demonstrations against the Vietnam War in the late 1960s and early 1970s. But campus outcry took a new turn in 1993, when President Clinton signed the “don’t ask, don’t tell” policy into law.

The policy allows homosexuals to serve in the military, but warrants their dismissal if they announce their orientation to others.

By the mid-1990s, several university law schools began barring military recruiters, along with those of any employer who could not promise that it would not discriminate on the basis of sexual orientation, from operating on campus.

Congress responded with a law to block Defense Department funding to universities that refused to allow military recruiters. The law was later amended to block all federal funding, with the exception of student loan money, to any university that took such action

It was not clear yesterday what the Supreme Court’s ruling may mean for the future of the “don’t ask, don’t tell policy.”

Mr. Shapiro asserted that nothing in the ruling “endorses the military’s ‘don’t ask, don’t tell’ policy or any other form of discrimination against gay people.”

Joseph Zengerle of George Mason University School of Law — the only law school to publicly side with the government in the case — said the ruling fits within a high court pattern of giving “great deference to the military and how it organizes itself and handles its policies.”

Citing the ongoing war on terror, Mr. Zengerle, a Vietnam veteran who heads a clinic giving free legal assistance to military personnel and their families, added, “The closer you are to a hot war, the more deference the court is going to give the executive branch and Congress in handling national security matters.”

In other action yesterday, the Supreme Court:

cAgreed to clarify when inmates can file civil rights lawsuits contesting prison conditions.

cRefused to consider whether a top judge in Illinois improperly voted to throw out a $1 billion judgment against State Farm after accepting campaign donations from company lawyers and executives.

• Declined to consider making it harder for grandparents to win visitation rights.

• Refused to hear a challenge to a statue at a Kansas college depicting a clergyman with a bishop’s headdress that angered some Roman Catholics because of its phallic appearance.

• This article is based in part on wire service reports.

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