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Court backs military on campuses

Schools can't ban recruiters over gay policy

WASHINGTON -- The Supreme Court ruled unanimously yesterday that law schools must allow the military to recruit on campus, even if the Pentagon's ''don't ask, don't tell" rule violates school antidiscrimination policies pertaining to gays.

The court upheld a 1994 law that would strip a university of all federal funds if any of its schools discriminates against military recruiters. The justices decisively rejected a challenge to the law by a coalition of law schools organized by a Boston-area law professor and his students.

Despite the victory for the military, Chief Justice John G. Roberts Jr. wrote, law schools are not powerless to express their disapproval of the military's ''don't ask, don't tell" policy. Students and professors can put up signs, give speeches, and organize protests when military recruiters visit, he 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," Roberts wrote.

Still, the ruling was a crushing blow to gay rights activists and a coalition of 36 law schools that sought to bar military recruiters.

In New England, the coalition included law schools at Northeastern University and Suffolk University, as well as at Roger Williams University in Bristol, R.I.

The leader of the coalition said all the schools will have to keep allowing military recruitment, but he predicted that law professors and students who are concerned about gay rights would intensify their efforts to mount large-scale protests when the recruiters are on campus.

Kent Greenfield, the Boston College law professor who organized the lawsuit, said the military has complained in the past about protests that recruiters feel harass students who are interested in the military. But Greenfield said he believes that yesterday's opinion means campuses will probably see very aggressive protests.

''The one thing that becomes clear from this opinion is that the court is protecting our right to vehemently protest against the [military] when they do come onto campus," Greenfield said. ''My expectation is that . . . protests might go up on law school campuses after this opinion."

The website of Georgetown University Law Center, one of the schools in the coalition, called the court's decision ''a call to arms to law-school administrations across the country to vocally demonstrate their opposition to the military's 'don't ask, don't tell' policy."

At the Pentagon, a spokeswoman for Defense Secretary Donald Rumsfeld hailed the decision. The Department of Defense is a major recruiter at the nation's law schools, where it looks for potential uniformed lawyers to fill the ranks of the military justice system.

''Equal access to law schools -- and all schools for that matter -- for our recruiters is crucial to ensuring we attract a diverse and highly qualified pool of applicants," said Lieutenant Colonel Ellen Krenke. ''The Department of Defense is not asking for special treatment or seeking to compel or suppress free speech. We simply want to be able to compete on an even playing field for the best and brightest that our nation's universities have to offer."

Krenke also noted that it is up to Congress, not the Pentagon, to decide whether to change the ban on gays in the military.

Congress codified the rule against gays in the military in 1993 amid furor over then-President Bill Clinton's proposal to end the military policy of excluding homosexuals. Clinton then devised the ''don't ask, don't tell" policy, under which the military no longer would ask recruits if they were gay, but could remove any openly gay soldier.

Some activists, dissatisfied with the ''don't ask, don't tell" policy because it still amounted to discrimination, proposed banning recruiters from campuses.

But the following year, 1994, Congress enacted a law -- known as the Solomon Amendment -- that would yank federal grants from universities that block military recruiters.

During the 2002-2003 academic year, Greenfield and a group of his law students at Boston College developed a First Amendment-based theory for attacking the law, and organized the coalition to challenge the law.

The law schools argued that forcing them to allow military recruiters on the campus -- by threatening to cut off their university's access to a share in some $35 billion in federal grants -- violated their freedom of expression.

The schools said they disapprove of discrimination against gays and express that disapproval by requiring recruiters for every prospective employer to agree to a policy of nondiscrimination.

By forcing them to make an exception for the military, they said, the government was forcing them to signal approval for ''don't ask, don't tell" against their will.

A lower court agreed with the law schools. But the Bush administration appealed, and the Supreme Court voted 8-0 to side with the military.

Justice Samuel A. Alito Jr., took no part in the case, which was argued before his confirmation.

The law, Roberts wrote, ''affects what law schools must do -- afford equal access to military recruiters -- not what they may or may not say."

Greenfield said he was ''surprised and disappointed" by the fact that not a single justice agreed with the coalition. He attributed the overwhelming loss to the court's desire to be deferential to the military amid the wars in Iraq and Afghanistan.

In Congress, Representative Martin Meehan, Democrat of Lowell, who has filed a bill to end the military ban on gays, denounced the ruling.

But Elaine Donnelly, president of the Center for Military Readiness, a conservative think tank, called the ruling ''excellent" and argued that the ban should remain.

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