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U.S. Loses Ruling Over College Bans on Military Recruiters

By Michael Dobbs
Washington Post Staff Writer
Tuesday, November 30, 2004; Page A03

A federal appeals court yesterday prohibited the government from withholding funds from colleges and universities that refuse to cooperate with military recruiters because of the Pentagon's discrimination against gays in the armed forces.

In a 2 to 1 ruling, the U.S. Court of Appeals for the 3rd Circuit in Philadelphia blocked the government from enforcing a law known as the Solomon Amendment, which punishes universities that refuse to allow military recruiters on campus. The law was originally passed by Congress in 1996 but was not actively enforced before the beginning of President Bush's administration.

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"This is a landmark decision," said Joshua Rosenkranz, lead counsel for a network of 25 law schools and 900 law professors who complained that the Solomon Amendment violated their First Amendment rights. "The court understood that, in a free society, the government cannot co-opt private institutions as government mouthpieces."

The court ruled that the Solomon Amendment violated the free-speech rights of schools that restricted on-campus recruiting in response to the military's ban on gays. By threatening to withdraw federal funds from schools that refused to cooperate with military recruiters, the court wrote, the government was compelling them "to express a message that is incompatible with their educational objectives."

Pentagon and Justice Department officials did not immediately return calls seeking reaction to the court ruling. The government can appeal the decision to either the Supreme Court or the full 3rd Circuit, but neither body is obligated to accept the appeal.

While the Solomon Amendment applies to all types of universities, law schools were most vociferous in objecting to what they viewed as the military's discriminatory policies against gay men and lesbians. Some law schools banned military recruiters from holding job fairs on campus, while others refused to cooperate in more minor ways. Similar lawsuits have been filed around the country.

The Pentagon sent letters in late 2001 to more than 20 law schools threatening to cut off federal funds to them and their parent universities unless they reversed their policies. Faced with this threat, the law schools begin cooperating with the Pentagon but filed complaints in federal court seeking to overturn the law.

"This is a big vindication of our efforts," said Kent Greenfield, a law professor at Boston College and founder of the Forum for Academic and Institutional Rights, one of the main plaintiffs in the case. "This ruling allows schools and universities around the country to refuse to be agents of military discrimination against some of their students."

Yesterday's ruling in a case originally brought by New Jersey law schools overturned a decision by a lower court judge and marked the first time an appeals court had blocked the government from enforcing the law. The Solomon Amendment, named after a Republican congressman from Upstate New York, in effect required law schools to choose between getting federal funds and following their own policies, which barred discrimination against students on the basis of sexual orientation.


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