“Through ‘don’t ask, don’t tell, Congress has embraced a policy of discrimination against openly gay lesbian and gay servicemembers.  Congress may not force law schools to support or promote this discriminatory point of view,” said Ken Choe, a senior staff attorney with the ACLU’s Lesbian and Gay Rights Project. 

Over the years, universities have barred military recruiters from their campuses for reasons ranging from opposition to the Vietnam War to objections to the exclusion of women from the military.  Today, law schools refuse to let any employer recruit on their campuses unless it is willing to promise that it does not discriminate on the basis of sexual orientation, among other characteristics.  Because the military could not make this promise, its recruiters were barred. 

In response, Congress passed a law, commonly known as the Solomon Amendment, denying Department of Defense funds to schools that banned military recruiters from their campuses.  When law schools failed to capitulate because they generally receive no Department of Defense funds, Congress amended the law to deny all federal funds (except student loans) to entire universities if their law schools barred recruiters.

The Forum for Academic and Institutional Rights (FAIR), a coalition of law schools, the Society for American Law Teachers (SALT), and several individuals brought a legal challenge to the law claiming that it is a violation of the First Amendment’s guarantee of free expression to force law schools to give the military access to their recruitment programs or lose all federal funding for the entire university.  The Third Circuit Court of Appeals agreed with the law schools and issued a preliminary injunction against enforcement of the law.  The government appealed the case to the Supreme Court, which agreed to hear the case.

The ACLU brief argues that it is a violation of the Constitutional guarantee of free speech for the government to force itself into a law school’s recruitment program.  The brief notes, “These schools feel that the military isn’t a good employer because it discriminates.  The government doesn’t get to cut off all funding to the rest of the university because the law schools won’t let the military use their recruitment process to spread its anti-gay message.” 

A decision in the case, FAIR v. Rumsfeld, is anticipated later this term.

For more information on this case and others, go to: www.aclu.org/SupremeCourt.