High Court Upholds Military Recruiting at Colleges

The Supreme Court has ruled unanimously that colleges must accept military recruiters on campus if the schools want to continue receiving federal funds. The justices unanimously rejected a free-speech challenge from law schools that claimed they should not be forced to associate with recruiters.

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MICHELE NORRIS, Host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

MELISSA BLOCK, Host:

And I'm Melissa Block. The Supreme Court ruled today in a case involving military recruiters on college campuses. In a unanimous decision, the justices upheld a federal law that says recruiters must be allowed on campus and given the same access to students as other employers. If not, the entire university will lose its federal funding. NPR's Nina Totenberg reports.

NINA TOTENBERG: The court's decision centered on the military's don't ask, don't tell policy and how it conflicts with university nondiscrimination policies, in particular, law school policies. For nearly three decades, most law schools have required that all recruiters seeking to use the school's career services facilities pledge in writing that they don't discriminate on the basis of race, gender, religion or sexual orientation.

In 1994, Congress passed a law cutting off Defense Department funding to any school that restricted military recruitment. Most schools then allowed military recruiters onto the campus, but restricted the school's own administrative support services, refusing to send students emails and flyers advertising the presence of military recruiters.

Then came the Bush administration and 9/11. The schools were told they would lose all federal funding, university-wide, if the law schools did not provide exactly the same administrative services to the military that they provided to other recruiters. Some schools went to court, claiming that the government was interfering with their right to express their opposition to the military recruitment and don't ask, don't tell.

But today the U.S. Supreme Court ruled unanimously that providing administrative services to facilitate military recruitment is not speech, but conduct. Writing for the court, Chief Justice John Roberts said the federal law enacted by Congress leaves schools free to express whatever views they may have on don't ask, don't tell or the mandated campus access for recruiters. The school can put signs on the bulletin board, next to the door of the recruitment rooms. They can help organize student protests. But they have to provide equal access to military recruiters. Georgetown University law professor Chai Feldblum is one of the founders of the group that lost in the Supreme Court today.

CHAI FELDBLUM: I read this opinion as a call to arms. The Supreme Court said, if you don't like the speech of the military, counter it with your own speech.

TOTENBERG: Harold Koh is dean of Yale Law School.

HAROLD H: I think it's very clear that they're inviting us to engage in more speech, not less. And that sounds to me like an invitation for law schools to speak.

TOTENBERG: Carl Monk, director of the Association of American Law Schools, said today's ruling, however, puts law schools in a tough spot.

CARL MONK: This decision forces law schools to the Hobson's choice of either having to lose millions of dollars in government funding or being required to assist an employer who discriminates.

TOTENBERG: In fact, however, all but a few small, independent law schools have already caved in to the government on this question, because they simply cannot afford to give up hundreds of millions of dollars in federal funding. Now what they have to do to comply is clear. Former deputy secretary of the Army, Joe Reeder, who filed a brief in the case on behalf of himself and a lot of retired top military brass, said today he thought it was particularly important that the decision was unanimous.

JOE R: I think it has a lot more wallop when it's unanimous. I think on rudimentary issues, fundamental issues, it's very important.

TOTENBERG: As for the legal rationale of today's ruling, Chief Justice Roberts said that sending informational emails and flyers out to students is plainly incidental to accommodating the military on campus. It's a far cry, he said, from compelled speech, like requiring students to say the Pledge of Allegiance. Nor, he said, is this expressive speech, like burning a flag. Moreover, he said, Congress could've gone further. Because the Constitution gives Congress the power to raise armies, Congress could've simply ordered military recruitment on campus.

Nina Totenberg, NPR News, Washington.

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