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Court enters college funding fray

Spotlights ban on military recruiters

WASHINGTON -- The Supreme Court agreed yesterday to consider whether the government can withhold federal funds from colleges that bar military recruiters, wading into a dispute over campus free speech rights.

The justices will review in their next term beginning in October a ruling allowing law schools to restrict recruiters as a way of protesting the Pentagon's ''don't ask, don't tell" policy excluding openly gay people from military service.

The case sets up a free speech fight over schools' rights of association and the government's need to promote an effective military in time of war. It's a dispute that has resonated on college campuses since at least the 1950s during Senator Joseph McCarthy's anticommunism crusade. At that time, left-leaning professors were forced to sign loyalty oaths to the United States or be fired.

During the Vietnam War, the presence of ROTC programs on some campuses prompted protests, with opponents seeing them as representatives of a wrongheaded foreign policy and the Pentagon as an institution incompatible with free thought and expression.

Now the debate involves the Pentagon's desire to recruit military lawyers on campuses.

''The military services depend significantly on campus access to recruit the lawyers they need to carry out their missions," Bush administration lawyer Paul Clement wrote in filings with the court.

But E. Joshua Rosenkranz, a lawyer representing 31 law schools suing the Pentagon, contends the government may not force schools to accept its discriminatory policy by linking military recruitment to federal research money.

''If, as the Supreme Court has held, bigots have a First Amendment right to exclude gays, then certainly universities have a First Amendment right to exclude bigots," he said.

At issue is a 1994 federal law requiring universities that receive federal funds to give the military the same access as other recruiters. At some schools, the funding can be hundreds of millions of dollars.

The law, known as the Solomon Amendment, has been particularly controversial for law schools that have nondiscrimination policies barring any recruiter -- government or private -- from campus if the organization represented unfairly bases hiring on race, gender, or sexual orientation.

A panel of the Philadelphia-based US Court of Appeals for the Third Circuit in November blocked the government from enforcing the law pending a full trial, ruling 2-1 that it was ''reasonably likely" that the law violated free speech rights.

In its decision, the Third Circuit cited a 2000 Supreme Court ruling by Chief Justice William H. Rehnquist that let the Boy Scouts exclude gay scoutmasters. Just as the Scouts have a right to exclude gays based on a First Amendment right of expression, so too may law schools bar groups they consider discriminatory, the court said.

Kent Greenfield, a professor of law at Boston College Law School who founded the Forum for Academic and Institutional Rights, or FAIR, the group that brought the lawsuit, was pleased to hear that the Supreme Court would hear the case. ''The Solomon Amendment is forcing academic institutions to use their resources to further a government message that they disagree with and that has long been inconsistent with First Amendment principles and doctrine," Greenfield said yesterday.

Globe correspondent Simon Rios contributed to this report.

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