Court backs federal law in dispute over ‘don’t ask, don’t tell’
- Mar 15, 2006 -
The Supreme Court ruled unanimously March 6 the federal government may prohibit funds for universities that refuse to assist military recruiters because of the schools’ disagreement with the Pentagon’s “don’t ask, don’t tell” policy on homosexuals.
The justices upheld the Solomon Amendment, a congressional measure first passed in 1994 that requires schools that receive federal funds to treat the U.S. military the same as they treat other employers doing recruiting on campus. In so doing, the high court rejected the arguments of a coalition of law schools and professors that the amendment violates their First Amendment rights of speech and association.
The coalition, operating as the Forum for Academic and Institutional Rights (FAIR), contended the military’s “don’t ask, don’t tell” policy contradicts their non-discrimination policies, which include “sexual orientation” as a category. Homosexuality is a category under “sexual orientation.” The Pentagon’s “don’t ask, don’t tell” policy provides for the removal of a service member when he acknowledges he is a homosexual or when evidence is found of his homosexual behavior.
In his opinion for the court, however, Chief Justice John Roberts said the amendment “neither limits what law schools may say nor requires them to say anything. As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.”
Roberts cited Supreme Court decisions upholding equal access for Christian groups in high school and college in saying permitting military recruiters on campus does not communicate agreement with them by a law school.
“We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy,” Roberts said, adding with what seemed a measure of sarcasm, “Surely students have not lost that ability by the time they get to law school.”
Roberts said the government has a substantial interest in producing military forces. Recruiting advances that interest, he said.
New Associate Justice Samuel Alito did not participate in the opinion in Rumsfeld v. FAIR. He was not on the court when oral arguments were heard in December. Alito was confirmed to the court by the Senate Jan. 31.
Further Learning
Learn more about: Family, Sexual Purity, Homosexuality