By By Laura Rodell
The Supreme Court has recently agreed to pass judgment over a dispute between the Pentagon and a coalition of colleges and universities concerning schools’ rights to ban military recruiters from their campuses, according to a May report in The Washington Post.
A coalition of 31 law schools, including the faculty at the University’s School of Law, said hosting the recruiters violates their anti-discrimination policy because the military excludes openly gay members.
Enacted in 1996, the Solomon Amendment is a federal law that imposes penalties, like loss of federal funding, on colleges and universities that bar military recruiters from their campuses. The law was created to guarantee the military equal access to campuses and students, but some schools say the measure imposes on their rights for free speech.
“It’s like the schools are just stuck in a difficult situation,” Prachi Jain, sophomore marketing major, said. “They either accept the recruiters or they lose federal funding.”
The coalition, the Forum for Academic and Institutional Rights (FAIR), said the Solomon Amendment prevents schools from fully embracing an anti-discrimination policy because it requires that they open their campuses to military recruiters who do not accept openly gay individuals.
In addition to the faculty at the University’s School of Law, which does not necessarily reflect the opinion of the University, others in the nationwide coalition include the faculties others in the nationwide coalition include the faculties at Georgetown University Law Center, Fordham University School of Law, Chicago-Kent College of Law and the New York Law School.
“I don’t have a problem with having military recruiters on campus, but I guess it’s kind of hypocritical to have an anti-discrimination policy and then give them [recruiters] access, [to college campuses],” Laura Fanelli, senior math major, said.
According to The Washington Post article, prior to 9/11 many colleges and universities sustained their federal funding without completely adhering to the amendment. Repercussions did not fall on schools that granted less-than-equal access to the military, as long as recruiters were not shut out.
After the attacks, however, the government stiffened enforcement of the amendment and threatened to withdraw funding from schools that did not provide complete, equal access.
Employers who use Harvard Law School’s career services must pledge to be non-discriminatory in their hiring practices, but the military does not practice what it preaches.
The “don’t ask, don’t tell” policy, a law that bans openly gay and lesbian individuals from serving, gives the military the right to exclude certain individuals.
“Sexual orientation will not be a bar to service unless manifested by homosexual conduct,” according to the Pentagon’s New Policy Guidelines on Homosexuals in the Military.
“The military will discharge members who engage in homosexual conduct, which is defined as a homosexual act, a statement that the member is homosexual or bisexual, or a marriage or attempted marriage to someone of the same gender.”
With Harvard University, not just the law school, facing a loss of hundreds of millions of dollars in federal research grants, their law school complied with the amendment and made an exception to its anti-discrimination rule in 2002, according to the article
The issue was then picked up by FAIR, which contested the amendment’s constitutionality by filing suit against six cabinet officials in the Bush administration in November 2004.
In Rumsfeld v. FAIR, the Third Circuit Court of Appeals in Philadelphia sided with the coalition and declared the amendment unconstitutional:”By impeding the law school’s right of expressive association and by compelling them to assist in the expressive act of recruiting,” read the majority opinion.
In May, the U.S. Supreme Court announced it will review the statute during its new term, which begins in October, to determine if it violates free speech and educational freedom.
J. Herbie DiFonzo, law professor at the University, said he expected the Supreme Court to accept the high-profile appeal.
“I’m not at all surprised that the Supreme Court took the case, given its national importance, and I personally hope they [the justices] agree with the view of the Third Circuit,” he said.
The federal government contends the amendment is needed to sustain an all-volunteer military during a time of active engagement in Iraq.
With college campuses one of the Pentagon’s strongest recruiting grounds, the Pentagon holds that unfettered access is necessary for effective armed services recruitment.
“My dad is in the military and I feel it’s important to recruit on campus and especially if that helps preserve federal funds for students who could otherwise not afford to attend educational universities like Hofstra,” Michaelle Solages, junior sports medicine major, said.
Government lawyers will also argue that the law is constitutional because it does not force colleges to host recruiters – the schools have the option of instituting a ban and forgoing federal funds.
In the government’s April 2005 petition to the Supreme Court for a Writ of Certiorari, or a request for the Supreme Court to review a lower court’s decision, acting Attorney General Paul Lement pointed out a major difference between this case and previous cases the court has reviewed.
“The Solomon Amendment does not compel anything,” he wrote. “Institutions of higher education that do not wish to provide equal access to military recruiters may decline federal assistance.”
The Supreme Court is expected to issue an opinion mid-2006.