The right to just say no: schools that wish to bar military recruiters because of "don't ask, don't tell" are winning on free speech grounds.

You might think that a battle against military recruiters on college campuses would be based on the right to freedom of association. But in fact it's become a fight over freedom of speech.

Congress and the Pentagon have been fighting hard against a growing number of prestigious law schools that have barred military recruiters because of the armed services' antigay "don't ask, don't tell" policy. They argue that the 1995 Solomon Amendment allows them to withhold federal funding from any school that doesn't allow on-campus recruiting.

But federal judges axe seeing it differently. In a lawsuit brought by Yale Law School, U.S. district judge Janet C. Hall on January 31 ruled that the Solomon Amendment violates the school's constitutional right to free speech. Hall noted that "faculty members do not wish to aid in disseminating [the Department of Defense's message] that it is acceptable for an organization to exclude homosexuals, or at a minimum those who admittedly engage in homosexual conduct, from employment." The ruling echoes one issued in November by the third U.S. circuit court of appeals in a case filed by a consortium of law schools, a ruling the Justice Department has said it will appeal to the U.S. Supreme Court.

"These rulings are really much more about speech than they are about discrimination," said David N. Rosen, an attorney who represented Yale in its case against the Pentagon. "What we hope, however, is that the rulings will affect discrimination by allowing institutions that oppose it to do so without fear of retaliation by the government." A First Amendment right to free speech means that schools "should be able to set their own policies and decide who can come onto their campuses and who can't," added Sharra E. Greer, director of law and policy for the Service-members Legal Defense Network, which assisted in the consortium case.

R. Bradley Sears, executive director of the Williams Project on Sexual Orientation Law at the University of California, Los Angeles, sees potential in the Solomon cases to set precedent in another developing gay rights arena--abstinence-only sex education. "It too is an example of the government giving money--this time to the states instead of academic institutions--with strings attached about what can and can't be said," noted Sears. "[The Solomon cases] are really kind of building some space in the First Amendment to say that the government should have some restrictions placed upon its ability to impact the free marketplace of ideas."