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As we begin 2005, we can look back with satisfaction on the decision of the 3d U.S. Circuit Court of Appeals in Forum for Academic and Institutional Rights v. Rumsfeld, which properly set the course for the future by allowing law schools to bar military recruiters from campus without jeopardizing federal funding. The decision is more than just a victory for educational institutions that object to the military’s discriminatory policies against gays and lesbians; it is a triumph for both free speech and gay rights. Forum played out as a classic clash between the conservative quarters of the military and the liberal confines of elite academe and is also inextricably bound up in the controversies of the Iraq war and the gay rights movement. Those extrajudicial factors ultimately may play an unseen yet exceedingly important role in the final outcome of the case, which may be reheard by the 3d Circuit en banc and could still come before the U.S. Supreme Court. As the late Justice Benjamin Cardozo wrote some 80 years ago, the forces at play in the content of judgments “are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed.” Setting aside for now, however, the latent forces that may be at work, we now have a 2-1 ruling on the constitutional and statutory legal issues. In issuing an injunction prohibiting the military from enforcing the so-called Solomon Amendment that allowed the federal government to withhold money from law schools that refused to assist military recruiting on campus, the two-judge majority held that the amendment violates the First Amendment speech rights of law schools. In particular, law schools constitute “expressive associations” or, in more common language, organizations that convey messages. Specifically, they seek to convey their own viewpoints of nondiscrimination and equal opportunity by withholding career placement services from employers that exclude employees based on a number of characteristics, including sexual orientation. These messages-this speech, as it were, in constitutional terms-are significantly impaired by the Solomon Amendment. The law essentially conditions the receipt of federal funds from the Department of Defense (DOD) upon law schools allowing military recruiters a degree of access on campus that is equal in quality and scope to that afforded other employers. Military recruiters carry a different message, i.e., “don’t ask, don’t tell,” about discrimination. The two-judge majority reasoned that the “Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom. While no doubt military lawyers are critical to the efficient operation of the armed forces, mere incantation of the need for legal talent cannot override a clear First Amendment impairment.” Boy Scouts case paved the way In ruling in favor of law schools’ right to exclude military recruiters from campus because of the DOD’s discriminatory policies against gays and lesbians, the majority relied in no small part on a 2000 Supreme Court case, Boy Scouts of America v. Dale. In Dale, the court upheld the Scouts’ right to exclude gay scoutmasters because the inclusion of such individuals allegedly infringed on the Scouts’ purported message that homosexual conduct is not a legitimate form of behavior. A decision lauded by social conservatives thus came back to haunt them in the Forum case. But such an irony is, perhaps, appropriate. If the First Amendment is to have any meaning, then it must be enforced in a viewpoint-neutral fashion. If the Boy Scouts of America can exclude gay scoutmasters, then surely law schools can exclude military recruiters without facing extreme financial hardships. The bottom line, then, is that it is impossible to escape the conservative v. liberal, military v. academia frame that surrounds the case of Forum for Academic and Institutional Rights v. Rumsfeld and the Solomon Amendment. Look for the government soon either to ask for a rehearing before the entire body of the 3d Circuit or to request that the Supreme Court hears its case. In the meantime, law schools will celebrate a significant victory in the culture wars. Clay Calvert is an associate professor of communications and law at Pennsylvania State University, adjunct professor at the University of the Pacific McGeorge School of Law and a member of the State Bar of California. Robert D. Richards is a professor of journalism and law at Pennsylvania State University and founding co-director of the Pennsylvania Center for the First Amendment.

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