High court to review ruling on military recruitment

The Supreme Court has agreed to hear a case brought by a group of U.S. law schools claiming that their right to free speech has been compromised by the forced presence of military recruiters on campus.

The schools -- acting as a body under the name Forum for Academic and Institutional Rights -- argue that an amendment which allows the government to deny federal funding to schools who do not allow military recruiters on campus is unconstitutional.

Stephen Burbank, a professor at Penn's law school, helped to file a similar suit that relies on many of the same arguments, though the facts of their case are somewhat different.

"The First Amendment protects us against being compelled to assist military recruiters in the expressive act of recruiting," Burbank explained.

The rule at the center of the debate, known as the Solomon Amendment, allows the government to revoke hundreds of millions of dollars in funding if schools do not allow military recruiters on campus. For Penn and the schools under FAIR, it forces schools to directly contradict their nondiscrimination policies, which do not allow employers who openly discriminate to recruit on campus. The military's "Don't ask, don't tell" policy, they claim, discriminates against employees based on their sexual orientation.

The Department of Defense appealed a Nov. 29 ruling by a panel of the Third Circuit Court of Appeals that said law schools have the right to block discriminatory employers from recruiting on their campuses.

Burbank was not surprised that the Supreme Court agreed to hear the case.

"The holding was that there was a high probability of success with respect to a claim that an act of Congress violated the Constitution," Burbank said. "When a lower court concludes that ... an act of Congress is unconstitutional ... that's a very important issue."

"It would have been surprising if the Court hadn't taken the case," Burbank added.

As the Supreme Court decides the case in the coming term, it will most likely have to reconsider major First Amendment cases in recent history, including Boy Scouts of America v. Dale, which ruled that the Boy Scouts have the right to exclude an openly gay scout leader from its ranks.

"The Third Circuit found Dale highly persuasive in its analysis," Burbank said.

Law School professor Kermit Roosevelt, who specializes in constitutional law, said that the case is unlikely to have broad-reaching effects.

"This is a pretty fact-specific case," Roosevelt said. "This case is really more about the scope of Dale than it is about something that is likely to affect First Amendment jurisprudence on its own."

Regardless of the Supreme Court's decision, Burbank said the Penn case will go forward on its own.

"One of the reasons that we brought our own case rather than linking up with the plaintiffs in FAIR is that we thought -- and we continue to believe -- that our facts are especially compelling," Burbank said. Rather than relying completely on a First Amendment argument, Penn's plaintiffs argue that the school managed to comply with the amendment without devoting Law School-specific resources to military recruiters.

The Department of Justice would not comment on the case because it is still under review.

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