Enlightened institutions have a First Amendment right to exclude bigots

New York Times, Tuesday, November 30, 2004

Universities may bar military recruiters from their campuses without risking the loss of federal money, a federal appeals court ruled Monday.

The U.S. Court of Appeals in Philadelphia ruled that educational institutions have a First Amendment right to keep military recruiters off their campuses to protest the Defense Department policy of excluding gays from military service.

The 2-1 decision relied in large part on a decision in 2000 by the U.S. Supreme Court to allow the Boy Scouts to exclude gay scoutmasters. Just as the Scouts have a First Amendment right to bar homosexuals, the appeals court said, law schools may prohibit groups that they consider discriminatory.

The 1995 law at issue in the decision, the Solomon Amendment, barred the federal government from disbursing money to colleges and universities that obstruct campus recruiting by the military. As amended and interpreted over the years, the law prohibits disbursements to all parts of a university, including its physics department and medical school, if any of its units, like its law school, make military recruiting even a little more difficult.

Billions of dollars are at stake, and no university has been willing to defy the government. Indeed, several law schools that are members of one of the groups that sued to block the law, the Forum for Academic and Institutional Rights, have not been identified publicly. Among the institutions willing to be named are the law schools of New York University and George Washington University. The law faculties of Stanford, Georgetown and several other law schools are also in the group.

A spokesman for the Justice Department, Mark Corallo, said no decision had been made on an appeal. In the meantime, colleges and universities are free to limit military recruiters' access to their campuses, said E. Joshua Rosenkranz, who represents the law schools in the suit.

"Now every academic institution in the country is free to follow their consciences and their nondiscrimination policies," Rosenkranz said. "Enlightened institutions have a First Amendment right to exclude bigots. In a free society, the government cannot co-opt private institutions to issue the government's message."

The law schools' anti-discrimination policies do not focus on the military; they apply to all potential employers with an announced policy of discrimination on the basis of race, sex and sexual orientation, and other factors.