- The Washington Times - Sunday, December 4, 2005


The Supreme Court will hear a case this week that asks whether law schools can bar military recruiters because of the Pentagon’s “don’t ask, don’t tell” policy on homosexuals in the military.

Each fall, recruiters of all types jam law schools seeking top students in job fairs, receptions and interview sessions. Justices will decide whether universities that accept government money must accommodate the military.

It is the first time that the court has dealt with a case related to homosexuality since a contentious 2003 ruling that struck down laws criminalizing sodomy. In 2000, the court ruled that the Boy Scouts have the right to ban open homosexuals from being troop leaders.

The latest appeal pits the Pentagon against a group of law schools and professors. The justices hear arguments tomorrow.

The government contends that if it provides financial support to a college — with grants for research, for example — then in exchange, it should be able to recruit “the very students whose education it has supported.” In this case, that means having the ability to recruit students, a tool made more essential since the September 11 attacks.

Federal financial support of colleges tops $35 billion a year.

Law schools said they would welcome military recruiters if the Pentagon dropped its policy against openly homosexual personnel.

The outcome turns on the First Amendment and whether schools can be made to associate with military recruiters or promote their appearances on campus.

“Part of the cultural meaning of the case is bound up in questions about gay rights,” said Cornell Law School professor Trevor Morrison, a former clerk to Justice Ruth Bader Ginsburg. “Indirectly, it’s about the ‘don’t ask, don’t tell’ policy.”

The Supreme Court often splits 5-4 in free-speech cases, so the impending retirement of Justice Sandra Day O’Connor may affect the case. If Judge Samuel A. Alito Jr. is confirmed by the Senate before the case is decided, then Judge Alito could be called on to break any tie vote.

Judge Alito probably would be sympathetic to the government’s arguments that college access is necessary to fill military jobs, Mr. Morrison said.

A federal law, known as the Solomon Amendment, mandates that universities, including their law and medical schools and other branches, give the military the same access as other recruiters or forfeit public money.

Congress passed the Solomon Amendment in 1996, a few years after lawmakers approved the “don’t ask, don’t tell” policy.

“In order to recruit the most talented men and women into the armed services, the military must be able to recruit students on college and university campuses, just as other employers do,” justices were told in a Bush administration filing.

The law had been contested by law schools that have policies that prevent on-campus recruiting by organizations that base hiring on race, sex or sexual orientation.

Justices were told in a filing for Harvard University, which six of the current nine court members attended, and other leading colleges that the case would “threaten grave damage to the integrity and independence of the nation’s universities.”

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