ACLU Urges Supreme Court Not to Force Universities to Accept Military Recruiters on Campus

September 21, 2005 12:00 am

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Says It’s Unconstitutional to Force Universities to Endorse “”Don’t Ask, Don’t Tell””

WASHINGTON – In a friend-of-the-court brief filed today, the American Civil Liberties Union urged the Supreme Court to rule that it is unconstitutional for Congress to force universities that object to discrimination against gay people to accept military recruiters on their campuses.

“Universities should be commended for holding the line against discrimination and insisting that it is wrong,” said Matt Coles, director of the ACLU’s Lesbian and Gay Rights Project. “For the time being, Congress can keep gay people out of the military. It shouldn’t be able to violate university rules against discrimination as well.”

At various times, universities have barred military recruiters from campus for reasons ranging from opposition to the Vietnam War to objections to excluding women from the military. Most recently, American law schools have refused to let any employer recruit on their campuses unless it was willing to promise that it did not discriminate on the basis of sexual orientation. Because the military refused, its recruiters were barred.

Congress passed laws denying Department of Defense funds to schools that banned recruiters. When law schools failed to capitulate, Congress decided 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 was a violation of the First Amendment’s guarantee of free expression to force law schools to either allow military recruitment or give up all federal funding to an entire university. The Third Circuit Court of Appeals agreed 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 an unconstitutional violation of the First Amendment for the government to force itself into a university’s recruitment process. “The Court has said for years that the federal government cannot force private citizens to carry government messages they disagree with,” said Coles. “These schools say that the military, as long as it discriminates, is not a good place to work. The government should not be able to threaten to cut off all funding to the rest of the university unless the law schools let the recruiters push jobs in the military.”

The Supreme Court will hear arguments in the case this December. A decision is anticipated later this term.

The ACLU’s brief is online at: /scotus/2005/fair_brief.pdf

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