Arbor Update

Recruiters May be Barred from College Campuses

1. December 2004 • Ari Paul
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College campuses win a victory over the Federal government and the Pentagon. Adam Liptak, the New York Times’ legal reporter, writes:

Universities may bar military recruiters from their campuses without risking the loss of federal money, a federal appeals court ruled yesterday.

A three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, found that educational institutions have a First Amendment right to keep military recruiters off their campuses to protest the Defense Department policy of excluding gays from military service.

The 2-to-1 decision relied in large part on a decision in 2000 by the United States Supreme Court to allow the Boy Scouts to exclude gay scoutmasters. Just as the Scouts have a First Amendment right to bar gays, the appeals court said, law schools may prohibit groups that they consider discriminatory.

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1. How is this ruling good? This reaffirms that any institution could bar blacks, or gays, or women, or whomever they want. Slippery slope, slippery slope, here we come, and after so much progress, too.
      —jhallum    Dec. 1 '04 - 03:38PM    #
   
2. Race and national origin are considered “suspect classes” under constitutional law, and sex a “quasi-suspect class”, meaning that governmental entities attempting to single them out have to convince very skeptical judges that it’s necessary for a compelling government interest. Military recruiters and gays are not considered suspect classes, and so a government entity trying to single them out need only convince very deferential judges that there is a rational relation between the barring action and a valid governmental interest.
   
   Those are the tests the courts apply when the discriminating entity is a legislative, regulatory, or administrative government body, and I expect the courts are looking at similar guidelines in the question of whether discrimination against a group by a private entity is enough to justify withholding of public funding. In this view, a university can discriminate against military recruiters (barring them from campus or withholding aid they’d give other types of recruiters) if they can show the discrimination is rationally related to the entity’s goals (in this case, fighting discrimination against gays).
   
   If the university tried to, say, bar women from campus because women discriminate against gays (by not entering into relationships with them) in the name of fighting discrimination against gays, the courts would probably allow public funds to be yanked. (Sorry, best example I could come up with on short notice.)
   
   Note that IANAL, and am quite possibly giving the wrong explanation for the court’s decision, but rest assured that this does not mean that a university could ban blacks or women and not risk withdrawal of public funding.
      —Murph    Dec. 1 '04 - 05:33PM    #