WASHINGTON - The Supreme Court said Monday that Congress isn't trampling free speech by threatening to withhold federal funding from universities that kick military recruiters off campus because the Pentagon's "don't ask, don't tell" policy on gays conflicts with the schools' anti-discrimination practices.
In a unanimous 8-0 ruling, the justices said Congress isn't stopping the universities from protesting the policy, nor is it asking the schools to endorse the policy by granting military recruiters the same access they give other employers.
Congress' Solomon Amendment merely seeks to regulate what universities "must do - afford equal access to military recruiters - not what they may or may not say," Chief Justice John G. Roberts wrote for the court.
The ruling is a big boost to the military and a blow to 36 law schools that joined forces to fight what they'd described as overreaching by Congress. The schools will now face a choice: Grant military recruiters full access to their campuses, or forfeit what in some cases is hundreds of millions of dollars.
"It's an untenable choice, there's just no question about it," said E. Joshua Rosenkranz, the attorney for the schools. "But this is a skirmish in a much bigger war about equality and human dignity. That's a war we're winning."
The case ends a dispute that dates back decades but intensified in 2002, when lawmakers eager to boost military recruiting in the wake of the Sept. 11, 2001, terrorist attacks got tough on universities.
In essence, they tied federal funding for universities to the hospitality they extend to military recruiters. Schools that treated the military like other employers would get their money. Those that chose to express their displeasure with the military's policy on gays by sending recruiters off campus or denying them the kind of reception that other employers received would have to forfeit their funds.
Since 1994, the military's policy of "don't ask, don't tell" has allowed gay men and women to serve as long as they didn't disclose their sexual preference or perform blatant homosexual acts in public.
Many law schools have stringent anti-discrimination policies that include protections for homosexuals; they give the same chilly welcome to recruiters from all employers that they feel discriminate.
A group of law schools objected to the new rules, saying Congress' edict was a violation of their free speech rights. They argued that it not only slapped down their protest, but also forced them to "associate" with the military's message by facilitating their recruitment efforts.
A federal district court rejected their arguments, but the 3rd Circuit Court of Appeals in Philadelphia sided with the schools, saying Congress' action was likely unconstitutional.
At the Supreme Court last fall, it seemed clear that the justices weren't buying the schools' argument. Several justices said it was within Congress' power to tie funding to access.
Roberts asked several times why, if the law schools felt so strongly about the policy, they didn't forgo the federal money.
In his opinion on Monday, he outlined how First Amendment protections of free speech and association weren't jeopardized by what Congress did.
"The Solomon Amendment neither limits what law schools may say nor requires them to say anything," Roberts wrote. "Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds."
He noted that the law might require schools to send e-mails or post notices about military recruiters because they do it for other businesses. But he said such "compelled speech" was only incidental to the requirement that military recruiters be treated equally.
Comparing that situation to similar ones the court has faced, Roberts wrote: "Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah's Witness to display the motto `Live Free or Die.'" He said it "trivializes" constitutional protections to suggest that the law schools face similar burdens.
Roberts said law schools aren't "speaking" when they aid students in the recruitment process.
"Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive," Roberts wrote. "Law schools facilitate recruiting to assist their students in obtaining jobs. A law school's recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper."
Rosenkranz, picking up on the court's insistence that the law didn't prohibit law schools from opposing the military's policy, said some might respond with more aggressive protests.
"Imagine signs over interview rooms saying: `Danger: Discriminating employer inside.' Or imagine school-sponsored protests when military recruiters come," he said. "You haven't even seen protests until now."
The court's 8-0 ruling reflects the absence of Justice Samuel Alito, who hadn't been confirmed to the court when the case was argued and thus didn't vote.
© 2006 KR Washington Bureau and wire service sources