Military recruiting does not interfere with academic freedom

Law schools and colleges have to allow the military to recruit on their campuses. If these schools close their doors to military recruiting, they forfeit Federal funding under the Solomon Amendment, a Federal law. Since many colleges do not want military recruiting in light of the military's prohibition against gay servicemembers, this conflict pits the First Amendment against the Federal government's need to maintain the armed forces. Except that it's no longer a conflict. In 2006, the Supreme Court ruled, in Rumsfeld v. Forum for Academic and Institutional Rights [FAIR], 547 U.S. 47 (2006), that the Solomon Amendment does not violate the First Amendment right of these colleges and law schools to distance themselves from the military's discriminatory recruitment policies.

In Rumsfeld, the Supreme Court held that the plaintiffs in that case did not really assert a First Amendment right because "accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when the host interviews and recruiting receptions." The Supreme Court also rejected other First Amendment arguments in the Rumsfeld case, but it did not say anything about whether the Solomon Amendment affects academic freedom, also a First Amendment interest.

This is where Burt v. Gates comes in. That suit was filed by a host of Yale Law School professors who are trying to get around the Rumsfeld decision by saying that the academic freedom issue was not resolved in Rumsfeld. The professers are forced to make this argument since, of course, the Supreme Court's ruling in Rumsfeld is binding on the lower Federal courts. Law professors being law professors, they came up with a way to distinguish the Rumsfeld case.

In a ruling handed down on September 17, the Second Circuit (Pooler and Raggi) disagreed with the law professors, for two reasons. First, although the Supreme Court in Rumsfeld did not specifically deal with the academic freedom argument, the Supreme Court implicitly rejected that argument. As the Second Circuit reasoned, the plaintiffs in the Rumsfeld v. FAIR case were also academics. "It would defy reason to assume that the Supreme Court ignored plaintiffs' status as academics in rejecting their First Amendment arguments. Because the parties and amici squarely argued academic freedom and the Court concluded that all of plaintiffs' First Amendment arguments lack merit, it is much more likely than not that the Supreme Court rejected the FAIR plaintiffs' academic freedom argument, thus precluding us from accepting the same argument."

But the Second Circuit ruled that even if the Supreme Court did not implicitly reject the academic freedom argument in the Rumsfeld case, the Yale Law professors should lose anyway. The Yale professors argued that academic freedom allows them to reject military recruiting without fear of losing Federal funding because they have the right to instill in their students a commitment to equal justice under law and ensuring a diverse student body. These values are threatened in allowing the military to recruit students into an environment that discriminates against gays.

As the Supreme Court has defined the phrase, academic freedom concerns the university's right to control the classroom environment without government interference. However, according to the Second Circuit, "[t]he relationship between barring military recruiters and the free flow of ideas is much more attenuated. The Solomon Amendment places no restruction on the content of teaching, the membership of teachers in organizations, the selection of students, or evaluation and retantion of students. While requiring universities to grant military recruiters that discriminate in hiring equal access to their campuses and students may incidentally detract from the academic mission of inculcating respect for equal rights, this requirement undermines educational autonomy in a much less direct and more speculative way than do the policies" that were struck down on academic freedom grounds in other Supreme Court cases over the years.