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Military recruitment, already strained by the war in Iraq, is facing a key legal test that pits the government's need for troops against the rights of schools to protest the Pentagon's policy toward openly gay soldiers.
Tuesday the U.S. Supreme Court is scheduled to hear arguments on whether the federal government can legally withdraw billions of dollars in funding from universities if they refuse to give military recruiters access to students on an equal footing with other employers. In 1995 Congress gave the military that power under a provision in the law known as the Solomon Amendment, though it rarely has been invoked.
The case has significant legal implications as well for the military's efforts to sign up high-school students. School systems can also be subject to losing federal funds if they keep out recruiters.
The closely watched case, Rumsfeld v. FAIR, focuses on law schools, where the military goes in search of some 400 attorneys a year. Many law faculties have resisted recruiters because they object to the Pentagon's policy of forbidding openly gay soldiers from serving in the armed forces.
The Department of Defense aims to sign up 180,000 new recruits a year for active duty. Already, with low unemployment at home and persistent casualties in Iraq, three-quarters of military recruiters are working more than 60 hours a week to achieve their goals, says Bill Carr, deputy undersecretary for military personnel policy.
The Supreme Court case is being heard against the backdrop of rising criticism in Congress and elsewhere against the war in Iraq. Today, a group called the Campus Antiwar Network plans a "national day of counter-recruitment" to coincide with the Supreme Court arguments.
Until recent years, the government considered schools in compliance with the Solomon Amendment as long as they allowed recruiters on campus. Still, many offered the military only limited access to students because the schools had policies against aiding employers who discriminate on the basis of sexual orientation.
In 2001 the Defense Department, frustrated at these roadblocks, started requiring that law schools treat military recruiters the same way as law firms and other private employers. For example, if law schools set up appointments, send emails or distribute literature on behalf of employers, they must also do so for the military.
A law-school group, called the Forum for Academic and Institutional Rights, sued the Defense Department, saying the Solomon Amendment interferes with its free-speech rights to express disapproval of a discriminatory policy. FAIR -- representing 36 law schools and faculties, including those at Stanford and Georgetown universities -- won in the Third Circuit U.S. Court of Appeals in Philadelphia, suggesting to some experts it could have a strong chance before the high court. Yale Law School teachers and students have separately prevailed in challenging the provision in a lower federal court, in a case the government has also appealed.
Pending the outcome of the Supreme Court case, nearly all law schools are obeying Solomon, giving full, equal access to recruiters. The government has made only three law schools -- New York Law School, William Mitchell College of Law and Vermont Law School -- ineligible for funding because they barred recruiters. Those schools, because they are not part of large universities, received little or no federal money.
The Defense Department's Mr. Carr says the government must enforce the Solomon Amendment to guarantee the readiness of an all-volunteer force. If schools restrict access, "either we are going to go short on soldiers or it will cost a lot more money to recruit them," Mr. Carr says. The Defense Department spends $1 billion annually on recruiting and advertising, and Mr. Carr says the government could have to spend hundreds of millions of dollars more if Solomon gets struck down and schools resist more broadly.
In the court case, the government argues it has a compelling constitutional responsibility to raise a military. Its lawyers say that requiring equal access to military recruiters doesn't interfere with First Amendment rights because law schools and students remain free to protest, as well as turn down federal money.
But the entire university, not just the law school, stands to lose federal research and other money under the Solomon Amendment. (Congress excluded financial-aid money for students.) FAIR maintains that losing the federal support would amount to an institutional death sentence -- which its says is coercive and hardly a reasonable choice. Harvard and Yale stand to lose $300 million apiece.
A defeat for the Solomon Amendment would also be a setback for alumni and students seeking a return of Reserve Officers' Training Corps programs at Ivy League schools, including Columbia, Harvard and Yale. In the 1960s and 1970s, these schools kicked ROTC off campus in protest of the Vietnam War and continued to keep their distance because of the military's policies toward gay soldiers.
The Pentagon hasn't asked for a new outpost at these schools but has the power to insist under Solomon. The Columbia University Senate, a body made up of administrators, faculty, students and alumni, voted earlier this year against the return of ROTC. Outside the Ivies, Charles Sorensen, chancellor of the University of Wisconsin-Stout, had objected to a new ROTC chapter there, citing arguments similar to those of the law schools in the Supreme Court case. But in June he reversed himself after lawyers warned him the school faced losing millions of federal dollars.
Groups, including the American Legion, which supports the Solomon Amendment, believe its defeat would embolden parents who oppose recruiting in high schools to launch similar challenges. A provision of the No Child Left Behind law -- paralleling Solomon -- pulls federal funding from school systems that refuse to turn over students' contact information to military recruiters. Nationally, that money amounts to billions of dollars, often 10% of an urban school system's budget.
Bruce Hunter, associate executive director of the American Association of School Administrators, which represents superintendents, says many parents and school boards would like to resist turning over names to recruiters.
"If the Solomon Amendment is struck down, someone will challenge the language in No Child Left Behind," he says. "There is no doubt in my mind about that."
Parents or school boards in California, Washington state and New York have already sought to resist turning over names, either out of antiwar sentiment, privacy concerns or protest of the military's policies toward gays.
Some schools have taken a permissible path of resistance: Under No Child Left Behind, schools may offer parents the chance to "opt out" of lists sent to recruiters. A California-based group called Leave My Children Alone has led the parents of 37,000 high-school students to do so. But some schools want to go further, requiring that parents "opt in," or express interest in the military, before the school will release names.
In New York, the school board of the Rochester City School District took that stand in August. Of 1,500 letters recently received from parents of high schoolers, only 138 agreed to allow their children's names to be sent to recruiters. The Pentagon's Mr. Carr says the government expects to challenge Rochester's position because it appears to single out the military.
Willa Powell, a Rochester school-board member and retired captain in the Army Reserves, pushed for the new policy. "This country was founded on our right to self-determination," says Ms. Powell, a mother of four. "It's not appropriate for the federal government to assume the prerogative to intrude itself into our private lives."