JROTC and the Law

By Edwin C. Darden

The presence of Junior Reserve Officers Training Corps (JROTC) programs at public high schools is a privilege -- not a legal right guaranteed by the Constitution -- declared a federal court in a strongly worded 2008 decision that fortifies school board authority.

The ruling upheld a 2006 vote by the San Francisco board of education to abolish JROTC for various reasons, including the military’s “don’t ask, don’t tell” policy requiring gay and lesbian volunteers to conceal their same-sex preference. The board eventually reinstated JROTC in 2009, however, immediately before the two-year phaseout would have been finalized.

When it voted initially to expel JROTC, the board cited both funding issues and its strict adherence to a non-discrimination policy. Members were also encouraged by peace groups to take action.

Stung by the loss, several JROTC students sued, claiming the move violated their First Amendment right to free speech. The California federal district court dismissed the case and rejected that view in a sweeping and majestic defense of board authority.

The empowering ruling stated emphatically that “to inject First Amendment analysis in this area would transform federal courts into de facto school boards, saddling them with difficult pedagogical and political decisions that are best left to elected officials.” The decision explained the dilemma: “Courts lack any judicially manageable standards and schools could be required to offer an unlimited menu of academic choices, with personalized curricula that no school district has the resources to sustain.” 

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