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Fighting Might with Rights

by professor kent greenfield

Speech should trump military policy in Supreme Court case on campus recruiting


A blockbuster case in the fall term in the Supreme Court is one that has strong links to Boston College Law School and important implications for all other law schools and universities in the country. In Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), the Court will decide whether the federal government can force universities to assist military recruiters under what is called the Solomon Amendment.

Most law schools, including BC Law, require potential employers to sign a pledge to not discriminate against students on the basis of race, sex, age, sexual orientation, and other morally irrelevant characteristics. Even though the military recruiters refuse to sign such a pledge because of their discrimination against gay, lesbian, and bisexual students, the Solomon Amendment forces schools to help anyway. Schools must provide the military information about our students, arrange interviews, post information about military jobs, and supply interview facilities. Anything we do for non-discriminatory employers we must do for the military, or our federal funding is at risk.

I founded FAIR two years ago to give a voice to lawschools that wanted to contest Solomon. FAIR now has more than thirty law schools and law school faculty bodies as members. Another of the plaintiffs is the Coalition for Equality (CFE), a group of straight and gay students at BC Law. FAIR, CFE, and other plaintiffs filed suit in the fall of 2003 and won in the Third Circuit Court of Appeals in the fall of 2004.

I believe that the Supreme Court will uphold the Third Circuit’s decision, and the reason is straightforward: The First Amendment means the government cannot force individuals or institutions to promote a message they disagree with. Here, Solomon forces universities to use their own resources to further a message they find abhorrent, namely “Uncle Sam Wants You—But Only If You’re Straight.” A long line of Supreme Court cases support the right of people to be free from compelled speech, and this situation falls squarely within that doctrine.

The Court will also have another line of cases at its disposal that would similarly support a decision for FAIR. The First Amendment includes a right of “free association,” which means that groups’ self definition around core principles is constitutionally protected. In our case, non-discrimination is a core educational value for law schools, and the forced presence of military recruiters undermines the schools’ message of equality. To support this insight, the Third Circuit used an ironic precedent, the Supreme Court ruling that the Boy Scouts have a First Amendment right to exclude gays. The Third Circuit applied the same reasoning, reaching the opposite result: If the Boy Scouts can exclude gays, then law schools can deny access to those who exclude gays.

One question I am often asked is this: “If you don’t like military recruiters, why not just stop taking federal money?” The answer is that, with minor exceptions that do not apply here, the Supreme Court has long held that the government cannot force people or institutions to waive constitutional rights as a condition of funding. Most of us receive some kind of government benefits—drivers’ licenses, social security, Medicare, public housing, educational loans. If the government
could condition benefits on our willingness to give up free speech, only those who do not need the government at all could speak out against it.

I am also often asked why law schools are so anti-military. Of course, we are not, as we are fighting for the right of all of our students—gay or straight—to serve their country. Moreover, even at the risk of appearing unpatriotic, it is important to protect the rights of educational institutions (especially religious ones) to provide a counter-weight to government orthodoxy. Such is true in the best of times. The balance universities provide is even more crucial when the fervor of the moment suppresses disagreement and discussion. The Supreme Court should protect the right of educational institutions—and by extension all of us—to march to the beat of a different drummer or to no drummer at all. That is distinctly American.