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Most Supreme Court justices back campus recruiting

Posted on: Tuesday, 6 December 2005, 14:39 CST

By James Vicini

WASHINGTON (Reuters) - A majority of Supreme Court justices expressed support on Tuesday for the U.S. government's position that universities that get federal funds must allow military recruiters on campus, even if the schools oppose the Pentagon's policy on gays and lesbians.

The justices appeared likely to uphold a federal law dating back to 1994 that allows the government to withhold money from universities that deny military recruiters the same access to campuses given to other employers.

Congress adopted the law after some universities sought to restrict military recruiting to protest the Pentagon's "Don't ask, don't tell," policy that bars openly gay individuals from serving in the armed forces.

A coalition of law schools challenged the law and said the Pentagon's policy violated their own long-standing policies against discrimination based on sexual orientation.

New Chief Justice John Roberts was among the court members who seemed supportive of the government's position during the questioning of E. Joshua Rosenkranz, a New York attorney who argued for the law schools.

A decision by the high court is expected by the end of June.

Roberts questioned whether the law insisted on anything, given that universities remained free to bar military recruiters as long as they give up federal funding, which he said they have been unwilling to do.

Referring to a university that does not want to host a military recruiter on campus, Roberts said, "You are perfectly free to do that if you don't take the money."

Justice Antonin Scalia pressed Rosenkranz on whether the law required any actual speech, asking, "Which words are the universities compelled to utter by this legislation?"

DISCLAIMERS, PROTESTS ALLOWED

Justice Anthony Kennedy said the universities could add a disclaimer that their law school opposed the Pentagon's policy on e-mails sent to students about the dates and places for visits by military recruiters.

Kennedy asked whether a law school could prevent a law firm from recruiting on campus because it adopted a litigating position opposing gay marriages.

Justice Sandra Day O'Connor said a law school could simply inform each student that it disagreed with the message conveyed by the military recruiters.

Justice Stephen Breyer seemed worried about whether a university would have the same right to restrict access to military recruiters because it opposed the Pentagon's advocacy of racial diversity.

Of the nine court members, Justice David Souter seemed the most troubled by the law and what the government sought to convey. "I thought the single message was join the Army, but not if you are gay," he said.

Solicitor General Paul Clement of the Justice Department said that, using the universities' logic, limits on military recruiting could be adopted if a school opposed the war in Iraq or in Afghanistan. "I think there is no limit on the (law schools') argument," he said.

He defended the law and said, "It allows the military a fair shot at recruiting the best and the brightest."

Clement said universities remained free to criticize the Pentagon's policy and could even organize protests and put up signs outside the recruiting room stating that the law school disagreed with the Pentagon's policy.

The Supreme Court agreed to hear the government's appeal after a U.S. appeals court in Philadelphia ruled the law could not be enforced because it infringed on the constitutional free-speech rights of the universities.

Source: REUTERS

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