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Court halts enforcement of law
penalizing schools that bar military recruiters

By DAVID B. CARUSO
The Associated Press
11/29/2004, 7:31 p.m. ET

PHILADELPHIA (AP) An appeals court on Monday barred the Defense Department from withholding funds from colleges and universities that deny access to military recruiters.

The 3rd U.S. Circuit Court of Appeals said a decade-old federal law known as the Solomon Amendment has infringed on the free speech rights of law schools that had sought to limit on-campus recruiting in response to the military's ban on homosexuals.

Ruling in a lawsuit brought by a coalition of 25 law schools around the country, a three-judge panel said that the government's threat to yank funding amounted to compelling the schools to take part in speech they didn't agree with.

"The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom," the court wrote. "While no doubt military lawyers are critical to the efficient operation of the armed forces, mere incantation of the need for legal talent cannot override a clear First Amendment impairment."

The judges added that the law may have had the unintended effect of hampering recruiting by engendering ill-will among potential recruits.

By a 2-1 vote, the panel overturned an earlier decision by a federal judge that the people challenging the law were unlikely to prevail at trial.

The ruling may affect all institutions of higher learning, but the case revolved around law schools because most had developed policies prohibiting discrimination by on-campus groups on the basis of sexual orientation.

Monday's ruling represented the first time a court had enjoined the government from enforcing the law.

The Justice Department, which represented the government in the case, said it was examining the decision and reviewing its appeal options.

"The United States continues to believe that the Solomon Amendment is constitutional. As we argued in our brief, 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 serving our country," the agency said in a statement.

One judge on the panel wrote a stinging dissent. Judge Ruggero John Aldisert said he was personally disturbed that law schools would, "as an academic exercise," ignore the consequences a recruiting ban would have on the military's ability to compete with well-heeled law firms for young talent.

"They obviously do not desire that our men and women in the armed services, all members of a closed society, obtain optimum justice in military courts with the best-trained lawyers and judges," Aldisert said.

He said he disagreed with plaintiffs who argued that the schools were being asked to violate their own anti-discrimination policies by welcoming recruiters who won't take openly gay men and women.

"We cannot conclude that the mere presence of a uniformed military recruiter permits or compels the inference that a law school's anti-discrimination policy is violated," Aldisert said. "The subjective idiosyncratic impressions of some law students, some professors, or some anti-war protesters are not the test. What we know as men and women we cannot forget as judges."

The two-judge majority based its decision in part on an earlier Supreme Court ruling that the Boy Scouts of America could bar homosexuals from becoming scouts or troop leaders.

The court reasoned that if the Boy Scouts could legally reject gays because it had a core belief that homosexuality is illegitimate behavior, then other institutions could impose an opposite type of restriction if it had a core value that discrimination on the basis of sexual orientation is wrong.

"The court understood that if bigots have a First Amendment right to exclude gays, then enlightened institutions have a right to exclude bigots," said E. Joshua Rosenkranz, a lawyer for The Forum for Academic and Institutional Rights, which was the lead plaintiff in the suit.

He said the law schools would be proud to have military recruiters on campus, if the service was willing to accept all qualified students.

"We believe our students are good enough for the military. All of them. And they should all have a chance to serve," Rosenkranz said. "It is the military deciding that lawyers can't practice law in their ranks if they have a particular sexual orientation."