By Laura Rodell
The Supreme Court this month put an end to the question of whether colleges have the right to ban military recruiters from their campuses without sacrificing federal grants.
In a unanimous decision, the high court ruled schools that reject recruiters must also forfeit federal dollars.
The decision was a blow to a coalition of more than 30 law schools and professors that filed suit against Defense Secretary Donald Rumsfeld last year.
The coalition, which included faculty members of the University’s law school, contended that the military’s “don’t ask, don’t tell” policy violates their school’s non-discrimination policy.
“I think [the decision] is unfortunate because it puts many schools in a position of having to accept an organization that does not comply with the anti-discrimination clause all other employers have to comply with in order to recruit on campus,” said Marshall Tracht, vice-dean of the University’s law school.
The University will continue to allow military recruiters onto its campus, said Melissa Connolly, vice president of University Relations.
With the federal government channeling approximately $35 billion to higher education annually, schools will be hard-pressed to turn down grant money.
“Don’t ask, don’t tell” is the common term for the current military policy that prohibits gay men and women from disclosing their orientation while serving in the U.S. military.
The coalition of law schools argued the 1993 legislation conflicts with some colleges’ and universities’ requirement that recruiters sign pledges saying they do not discriminate before being allowed access to campus facilities.
The Forum for Academic and Institutional Rights (FAIR), contended that the 1996 Solomon Amendment, which authorizes the withholding of federal funds from colleges and universities that ban military recruiters, violates the schools’ first amendment right to freedom of speech by compelling the schools to calibrate their philosophy or face financial sanction.
The government countered that the amendment was fair in that it gave schools the option of whether to accept the recruiters (and maintain federal funds) or ban the recruiters (and forgo federal funds), a position the Supreme Court agreed with.
“In this case, FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect,” wrote Chief Justice John Roberts. “Congress’ power in this area is broad and sweeping and there is no dispute in this cases that it includes the authority to require campus access to military recruiters.”
Roberts also noted that the opinion of a federal appeals court in Philadelphia – which thrust the issue into the spotlight by deeming the Solomon Amendment unconstitutional in 2004 – was based on a fundamental misinterpretation of the legislation.
“As a general matter, the Solomon Amendment regulates conduct, not speech,” he said. “It affects what law schools must do – afford equal access to military recruiters – not what they may or may not say.”
Under the Solomon Amendment, withheld federal grants include those used by the school or professors for projects, programs and research.
Grants that go directly to students, such as financial aid, cannot be touched.
“It adds up to a pretty hefty sum,” said Gerard Anderson, director of financial aid at the University’s law school. “Unless a school is truly self-sufficient financially, I doubt many could pass up these federal grants.” University Law School faculty members who joined the coalition nonetheless hope that the public pressure will prompt Congress to make revisions.
“The ultimate audience for changing legislation is not the Supreme Court but the U.S. Congress,” said Eric Freedman, a Maurice A. Deane Distinguished Professor of Law within the University’s law school.
“Since the Congress is moved by the opinion of the U.S. public, that is really where the battle needs to be fought. Realizing that the issue has nothing to do with recruiters and everything to do with a thoroughly discriminatory policy, we hope this decision will prove to be a small bump on the road to greater social justice.”
Some students said they regard the ruling as a positive development.
“These institutions are supposed to be bias-free places of learning and when you infringe upon those rights and say ‘you have to do this or we’re dropping your funding,’ it places the education system at great risk.”
Other student said they believe the decision was misguided.
“I feel that banning the military to recruit students on campus could deprive students of the chance to be educated about what the military has to offer,” said Lauren Maher, senior political science major and chairwoman of College Republicans.
“The military attracts blacks, whites, Hispanics and homosexuals; it’s full of diversity and, by taking recruitment away, opportunities could be lost.”
In order to maintain federal funding, schools must allow recruiters.