Supreme Court Rules on Military Recruiting

The Supreme Court has ruled on an issue affecting universities. The case, Rumsfeld v. Forum for Academic and Constitutional Rights, emerged out of the law school context, but has education wide implications.



In short, law schools banded together to attempt to limit
discrimination on several basis, including discrimination based on
sexual orientation. The policies prohibited any organization that
discriminated from recruiting on campus. The military openly
discriminates on the basis of sexual orientation. Thus, some law
schools (and a coalition of law school professors) prohibited the
military from recruiting JAG lawyers on their campuses. The military
sued and won in the Supreme Court. Thus, law schools cannot prohibit
the military from recruiting.



The impact of this case is somewhat limited in that it deals with
military recruiters. Thus, this case cannot be directly employed for
other Equal Access Act cases because there was a specific statute in
this case solely for military recruiters:



The Solomon Amendment denies federal funding to an institution of
higher education that “has a policy or practice . . . that either
prohibits, or in effect prevents” the military “from gaining access to
campuses, or access to students . . . on campuses, for purposes of
military recruiting in a manner that is at least equal in quality and
scope to the access to campuses and to students that is provided to any
other employer.” 10 U. S. C. A. §983(b) (Rumsfeld).



Because this statute was on the books, the statute overrode the law
school policy of general non-discrimination. Further, because the
statute is only tied to federal funds, schools are free to opt out of
it by denying themselves the federal funds. This provision passed by
Congress also did not violate any of the law schools free speech or
expression rights because there is no government requirement that the
law school "say" or "express" anything, only that they open their doors
to military recruiters.



Probably, this will have more of an impact on universities, but the
case is instructive. Schools can have anti-discrimination use policies,
but when those policies conflict with Congressional mandates, the
statutes take precedence. Thus, assumedly, Congress could write
statutes that mandate access for other types of recruiters and users
which would not infringe upon the school's free speech or expression
rights.



Listen to the Nina Totenberg NPR report or the Gwen Ifill report on PBS (especially good). Or read the CNN story, the NY Times story, or the Washington Post story.