Court hears clash resulting from ‘don’t ask, don’t tell’ policy

WASHINGTON (BP)--The U.S. Supreme Court heard oral arguments Dec. 6 on whether the federal government may ban funds to universities that refuse to assist military recruiters because of the schools’ disagreement with the Pentagon’s “don’t ask, don’t tell” policy on homosexuals.

The justices grilled lawyers for both the government and the schools in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), especially questioning a central argument by the universities. A decision in the case is expected before the court adjourns in June or July.

FAIR, which consists of law schools and professors, challenged the Solomon amendment. The measure, approved first in 1994 and expanded last year, requires schools that receive federal funds to treat the U.S. military the same as they treat other employers doing recruiting on campus.

The law schools, however, contend the military’s “don’t ask, don’t tell” policy contradicts their non-discrimination policies, which include “sexual orientation” as a category. Homosexuality is a category under “sexual orientation.” The Pentagon’s “don’t ask, don’t tell” policy provides for the removal of a service member when he acknowledges he is a homosexual or when evidence is found of his homosexual behavior.

A federal judge rejected FAIR’s effort to block enforcement of the amendment, but the Third Circuit Court of Appeals, based in Philadelphia, Pa., reversed that ruling and granted a preliminary injunction in favor of the law schools. The appeals court ruled Congress could not force the schools to surrender their free-speech rights in order to receive funds.

The justices seemed suspicious of that opinion and of the argument of FAIR’s lawyer, Joshua Rosencranz.

“What Congress really wants is to squelch even the most symbolic elements of the law schools’ resistance to disseminating the military’s message.... This is a refusal to disseminate the messages of the military recruiters,” Rosencranz said.

Describing the Solomon amendment as “viewpoint-oriented regulation of speech,” Rosencranz said Congress “is insisting that the law schools disseminate the recruiting message” of the Pentagon.

Chief Justice John Roberts disagreed.

“It doesn’t insist that you do anything,” Roberts told Rosencranz. “It says that if you want our money, you have to let our recruiters on campus.”

Associate Justice Anthony Kennedy told Rosencranz, “Your argument would allow schools to exclude anybody in uniform from the cafeteria.” Rosencranz disagreed.

Rosencranz said there are “two messages going on here, and they are clashing. There is the military’s message, which the schools are interpreting as ‘Uncle Sam does not want you.’ And there is the schools’ message, which is ‘We do not ... discriminate,’ which is immoral.”

He said students don’t believe the schools are opposed to discrimination because of Congress’ requirement they assist military recruiters.

“The reason they don’t believe you is because you’re willing to take the money,” Roberts responded.

Solicitor General Paul Clement, arguing on behalf of the federal government, said a school could take its argument to its logical conclusion and say, “In order to show just how much we don’t like the military policy, we’re not only not going to let military recruiters on campus, but we’re not going to hire” veterans.

Associate Justice Ruth Bader Ginsburg described Clement’s conclusion as “far-fetched,” but the solicitor general disagreed with her assessment.

The schools remain free not only to criticize the military and its policies but to reject the funds, Clement told the justices.

The oral arguments may be heard online at www.c-span.org.


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