It is unconstitutional for the Department of Defense to withhold funds from colleges and universities that limit on-campus recruiting by military officials, the third US Court of Appeals declared yesterday. The court said the 10-year-old law infringes on the rights of free speech of schools, since the schools are limiting access to the recruiters because of the military’s no-homosexuality policy.
If the schools did not comply with the law and open their doors to military recruiters, they were faced with the threat of funding loss. A three-judge panel said that the government’s withholding funding meant that it was forcing schools to support a “message that is incompatible with their educational objectives."
Although the ruling is applicable to all tertiary institutions, the particular suit was brought by over a dozen law schools, since many had developed policies that prohibited discrimination based on sexual orientation. This ruling is the first time a court has ever stopped the government from enforcing the law.
The two-judge majority decision was based on a previous Supreme Court ruling that allowed the Boy Scouts of America to ban homosexuals from joining their organization. The rationale behind the decision was that if the Boy Scouts were allowed to reject gays based on its core belief that homosexuality is wrong, then, likewise, other institutions could enforce a reverse type of restriction based on their core belief that discrimination is wrong.
Judge Ruggero Aldisert wrote in a dissent that he is troubled that law schools are disregarding the fact that the military would have to compete with law firms for lawyers to work for them if the ban was implemented. With casualties from Iraq and Afghanistan leaving over
1,300 dead and 10,000 wounded, it is becoming increasingly difficult for recruiters to persuade young people to volunteer to carry the yoke of national defense. The Justice Department, which represented the government, has indicated that it was considering the option to appeal.