Court Allows Universities to Bar Military Recruiters

Court Allows Universities to Bar Military Recruiters [RSS] (NYT)

Universities may bar military recruiters from their campuses without risking the loss of federal money, a federal appeals court in Philadelphia ruled today. The suit was brought by an association of law schools and a group representing hundreds of legal scholars seeking to help universities and colleges that want to keep military recruiters off their campuses because they object to the Defense Department’s policy of excluding gay men and lesbians from military service.

A 1995 law, known as the Solomon Amendment, bars 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 of the law schools that are members of the Forum for Academic and Institutional Rights, the group that sued to block the new law, 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 members of the group. E. Joshua Rosencranz, who represents the plaintiffs in the suit, said the reluctance of several of his law school clients to be identified publicly was driven by fear. “They don’t want retribution that is exacted behind closed doors by faceless bureaucrats and vindictive politicians,” Mr. Rosencranz said.

The 2-to-1 decision in Philadelphia today, by the United States Court of Appeals for the Third Circuit, said the law violates the schools’ First Amendment rights in two ways. Citing a 2000 decision of the United States Supreme Court that said the Boy Scouts have a First Amendment right to exclude gay scoutmasters, the appeals court said the law schools have a First Amendment right to convey a message opposing discrimination against gays by excluding military recruiters. The appeals court also said that the presence of military recruiters on campus forces universities to convey a message with which they disagree. That is a form of compelled speech, the court said, prohibited by the First Amendment.

The court’s rationale here is plainly idiotic and I expect it to be overturned by the Supreme Court. Just like the Boy Scouts, private schools have the right to limit their association and bar groups that they adjudge discriminatory against homosexuals. Bob Jones University does that sort of thing in reverse. As a result, however, Bob Jones University gets denied federal funding. The Supreme Court upheld that ban in 1983.

Further, the federal government isn’t compelling the schools to even tacitly agree with the Defense Department’s policy on gays. The school could hold symposia condemning the practice, allow school-sanctioned groups to protest the policy, and so forth. They merely have to allow military recruiters access to school grounds to exercise their speech rights. And, if they find that burden too onerous, they can merely forego subsidy from the federal taxpayer.

Moreover, it’s not entirely clear to me how the plaintiffs had the standing to sue. If, as the article states, no school has dared defy the ban, then no school has been denied federal funds as a result of the Soloman Amendment. How then is there a case in controversy?

Update (11/30 1034): Colleges Can Bar Army Recruiters (NYT)

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.”

Interesting. Aldisert and Bashman both make excellent points. As does “Captain Ed” Morrissey:

The Third Circuit operates from the belief that universities somehow have an entitlement to federal funds, a judgment that makes a mockery of Congress’ control of federal expenditures.


FILED UNDER: Law and the Courts, Military Affairs, , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Xrlq says:

    I can name at least one school that has defied the ban and AFAIK still does: UC Berkeley. I wish I had known about the Solomon Amendment when I attended law school there. I don’t know if Boalt gets federal funding, but I can’t imagine that no part of the Berkeley campus does.

    In any event, any school that doesn’t want to follow the rules and also doesn’t want to lose its federal funding should have standing to sue.

  2. mike says:

    While I don’t necessarily agree w/ the don’t ask/don’t tell policy, the Military Law Society (more of a beer drinking group) at W&M signed on for one (of the many I am sure) amicus briefs for the sole reason that the military does offer an opportunity for many young, new lawyers – sadly, I think my rather conservative (compared to other law schools – which means it is probably in the center) school may try to ban recruiters but I think the state legislature may stop them – we shall see…

  3. Mike says:

    There’s no right to federal funding. I think the appeals court has its head stuffed somewhere on this one.

  4. Ret Automoton says:

    The banter on this site is painfully predictable. The DoD does not have a “freedom of speech”. Agencies like these have access to every spot on the planet. There has to be a place where they are not free to go. This would include a school of any kind, i.e. highschools. The failure of all checks and balances will have them in church’s if the argument here holds water. This suit is about more than the federal monies granted schools, it’s about the militarization of our culture, from economic policies to the world of academia. And to anybody who thinks the court always has it’s head up it’s ass, either go to Iraq (via your recruiter) or shut the hell up!

  5. LJD says:

    How does a federally funded school in any way constitute a place where the federal government has no right to go? The same goes for publicly funded high schools.

    In what way is our culture “militarized” when our biggest problems are obesity, poor health from being sedentary, and substance abuse?

    So if we don’t agree with the court we should go to Iraq or shut-up? Where do these choices come from, and what do they have to do with anything?

    Did you ever stop to think that the military recruiters offer an opportunity to young people who might not get any other chance to elevate themselves? Or does your left wing utopia provide for all of that with your master plan? Or should we just tax the rich and stay on welfare?

  6. Didly-Dangit says:

    You guys are no help. I have to write a term paper on this article and I thought I will get some ideas from you. But you all, MOSTLY, just blaber some nonsense over and over again. For example when did Iraq issue come up? and for what purpose? It has nothing to do with this. Probably the only sense making post is above mines, by permalink, though no help too. O well, I’ll think of something on my own,- (deep SIGH)