A federal appeals court in Philadelphia ruled Nov. 29 that universities may prohibit military recruiters from being on their campuses and not risk the loss of federal funds, The New York Times reported.
The suit was brought by the Forum for Academic and Institutional Rights (FAIR), an association of law schools and faculty. FAIR represented hundreds of legal scholars seeking to help educational institutions keep military recruiters off their campuses because they object to the Defense Department’s policy of excluding openly gay and lesbian individuals from military service.
A 1995 law, known as the Solomon Amendment, bars the federal government from disbursing money to colleges and universities that stop campus recruiting by the military. In the past, courts have interpreted the law to stop all departments of a school from receiving funds—even if only a few of the institution’s units make military recruiting difficult.
The 2-to-1 decision by the appeals court stated that the law violates the schools’ First Amendment rights in two ways. Citing a 2000 decision of the U.S. Supreme Court that said the Boy Scouts have a First Amendment right to exclude gay scoutmasters, the court said the law schools have the same right to convey a message opposing bias against gays. The appeals court also said that the presence of military recruiters on campus forces schools to convey a message with which they disagree, which the First Amendment prohibits. The dissenting judge said the majority had not considered the importance of unfettered military recruiting enough, adding that the schools can still criticize the military’s policies.
The Associated Press reported that Harvard University’s law school will return to a policy that keeps the military from recruiting on campus. Harvard Law School Dean Elena Kagan said the decision will allow the school to enforce its nondiscrimination policy without exception. Harvard had forbidden any recruiter from campus—military or otherwise—that could not sign off on the school’s nondiscrimination policy. However, in 2002, the Pentagon told Harvard and other schools that the government would begin enforcing the Solomon Amendment.