Justices side with military recruiters

Colleges can't exclude recruiters from campus to protest Pentagon's policy on gays, they rule.

Military officials might have to run a bigger gantlet of protesters as they search for recruits on America's university campuses. But they no longer have to worry that they'll be shut out altogether because of the "don't ask, don't tell" policy related to gay members of the armed forces.

The Supreme Court ruled unanimously Monday that military recruiters must have the same kind of access as other employers coming onto campus to give out information and conduct job interviews, if the campus receives federal money. Most campuses rely on some share of the $35 billion the government channels each year to higher education.

An association of law schools and professors, the Forum for Academic and Institutional Rights (FAIR), filed suit against Defense Secretary Donald Rumsfeld to challenge the law that ties recruiters' access to federal funding - known as the Solomon Amendment. FAIR argued that campuses should be free to extend their own philosophy of nondiscrimination by requiring recruiters to sign pledges that they would not discriminate before being allowed the use of campus facilities. Under the Pentagon's policy, gay men and women can serve in the military only if they keep their sexual orientation to themselves.

"A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message," wrote Chief Justice John Roberts. "The Solomon Amendment neither limits what law schools may say nor requires them to say anything."

Supporters of the law schools' position were undeterred. "We're disappointed with the legal outcome of the case ... but this unanimous opinion is a call to arms to the law school administrations across the country," says Chai Feldblum, a law professor at Georgetown University and a board member of FAIR. The organization hopes "to see every single law school helping students to organize protests" against military recruiters on campus, "because the Supreme Court has told us that the way to exercise our First Amendment beliefs is by speaking out more."

The decision will come as welcome news for the armed services, which have worked diligently to overcome shortfalls in recruiting nationwide. In the last recruiting year, which ended in September, the Army missed its year-long goal for the first time since 1999, falling short of its target by 6,627 recruits. It represented the largest deficit since 1979.

At a time when the Pentagon is relying heavily on the Army in Iraq, recruiting is a matter of crucial importance to the military. Though higher-than-expected reenlistment rates have forestalled fears of a "broken Army," the Pentagon has made recruiting a top priority in recent months, approving enlistment bonuses of up to $40,000 and additional bonuses of $1,000 for soldiers who refer new recruits. It has also added more recruiters to the beat.

But with only a tiny fraction of recruits coming from law schools, some see the case as having a more symbolic significance.

"This was a very challenging case in some ways because, as the opinion makes clear, if you go too far in saying that allowing recruitment efforts you don't like violates your First Amendment rights, that might allow employment agencies to refuse to provide services on the basis of race, or religion, or national origin. There has to be some limit there," says Jon Davidson, legal director at Lambda Legal, a gay-rights advocacy group. Despite those intricate issues, the organization joined an amicus brief with the American Civil Liberties Union on behalf of FAIR.

Now that the campus-recruitment issue has been resolved, "the next real piece of the fight will go directly to 'don't ask, don't tell' itself," Ms. Feldblum says. She adds that cases challenging the military policy are already under way in Massachusetts and California, and a bill has been proposed in the US Congress to replace the policy with a nondiscrimination clause that includes sexual orientation.

• Amanda Paulson and Mark Sappenfield contributed to this report. Material from the wires was also used.