What goes around comes around

[thebullet]

Remember that Supreme Court Decision a few years back that allowed the Boy Scouts to ban gays from membership? A group of colleges has used that decision as a means of banning military recruitment from their campuses without losing federal funding because the military discriminates against gays.

Here is the article from the New York Times:

Colleges Can Bar Army Recruiters
By ADAM LIPTAK

Published: November 30, 2004

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

A three-judge panel of the United States Court of
Appeals for the Third Circuit, in Philadelphia, found
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-to-1 decision relied in large part on a decision
in 2000 by the United States Supreme Court to allow
the Boy Scouts to exclude gay scoutmasters. Just as
the Scouts have a First Amendment right to bar gays,
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
publicly identified. 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.

"The United States continues to believe that the
Solomon Amendment is constitutional," Mr. Corallo
said. "We believe that Congress may deny federal funds
to universities which discriminate and may act to
protect the men and women of our armed forces in their
ability to recruit Americans who wish to join them in protecting their country."

The government can ask the full appeals court to
review the decision by the three-judge panel or ask
the Supreme Court to hear the case. In either event,
the government may also ask for a stay of the
decision.

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," Mr. 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."

He noted, though, that most law schools' policies had
never completely barred recruiters on campus. Most
simply withheld some forms of assistance, like
arranging interviews and posting notices.

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

The dean of the New York University Law School,
Richard L. Revesz, said he welcomed the decision.

"We are gratified," Mr. Revesz said, "by the court's
protection of our right to exclude from on-campus
interviews employers who refuse to hire qualified
students simply because of their sexual orientation."

Mr. Rosenkranz said the reluctance of several law
schools to be publicly identified was driven by fear.

"They don't want retribution that is exacted behind
closed doors by faceless bureaucrats and vindictive politicians," he said.

The appeals court said the law violated First
Amendment rights of the schools in two ways.

First, Judge Thomas L. Ambro wrote, the schools are
entitled not to associate with groups whose policies
they oppose.


"Just as the Boy Scouts believed that homosexual
conduct is inconsistent with the Scout Oath," Judge
Ambro wrote, "the law schools believe that employment discrimination is inconsistent with their commitment to fairness and justice."

Second, Judge Ambro said, the presence of military
recruiters on campus forced universities to convey a
message with which they disagreed. That is, he said, a
form of compelled speech prohibited by the First
Amendment.


He noted, too, that the military had other ways to
recruit lawyers, including radio and television
advertising.

Judge Ambro was appointed by President Bill Clinton.
Judge Walter K. Stapleton, who was appointed by
President Ronald Reagan, joined the majority.

A dissenting judge, Ruggero J. Aldisert, appointed by
President Lyndon B. Johnson, said the decision was
misguided, particularly in wartime.

"What disturbs me personally and as a judge," Judge
Aldisert wrote, "is that the law schools seem to
approach this question as an academic exercise, a
question on a constitutional law examination or a moot
court topic, with no thought of the effect of their
action on the supply of military lawyers and military
judges."

"No court heretofore has ever declared
unconstitutional on First Amendment grounds any
Congressional statute specifically designed to support
the military," he added. "It bears note that the
military's policy against homosexual activity has been
adjudged by a number of our sister courts of appeal
not to violate the Constitution."

Judge Aldisert took issue with the majority's First
Amendment analysis, noting that nothing in the law
forbade the law schools to criticize the military's
policy on gays.

Howard J. Bashman, who helped write a supporting brief
on behalf of students who favored the law, said the
decision would hurt the military and the public.

"A ruling of this sort will cause the military to end
up with a lower quality of lawyer," Mr. Bashman said.
"These lawyers are involved in targeting decisions and
in decisions about how prisoners have to be treated."

Is this a great country or what???

 

[ABSTRUSE]

Interesting article. Glad to see someone taking a stand, esp colleges.

 

[alyxen]

OK, that brought a smile to my face.