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Bitterly debated Solomon Amendment will get Supreme Court ruling

The Supreme Court announced on May 2 that it will consider whether the federal Solomon Amendment violates the First Amendment by conditioning U.S. government assistance to universities on whether they provide military recruiters access to their students on a basis equal to that afforded other employers.

The argument will take place at the court in the fall, with a decision due sometime in the winter or early spring of 2006.

The court granted a petition by the justice department to review a November 29, 2004, ruling by the U.S. Court of Appeals for the Third Circuit, based in Philadelphia, which found a constitutional violation. The Third Circuit decision was issued by a divided three-judge panel, with a vehement dissenting opinion.

The Solomon Amendment controversy has its roots in the late 1970s, when new organizations of lesbian and gay law students emerged and succeeded in persuading several law schools to add “sexual orientation” to their anti-discrimination policies, and to deny on-campus access to employers whose own policies were discriminatory.

Recruiters for several federal agencies, including the defense department, the Federal Bureau of Investigation, the Central Intelligence Agency and the National Security Agency were barred from on-campus recruiting at prestigious campuses such as Harvard, Yale, Columbia and New York University. At that time, military officials threatened to cut off defense department funding to law schools where they were excluded, but the threats proved empty, since law schools—as distinct from the universities with which they were affiliated—typically do not receive any Pentagon money.

There the matter rested through the 1980s, as the recruiting ban spread to about a dozen law schools. By 1990, however, gay and lesbian law professors succeeded in pressing the Association of American Law Schools (AALS) to amend its by-laws to require member schools to include “sexual orientation” in their anti-discrimination policies, and to bar on-campus recruiters who did not comply with such policies.

Suddenly the defense department faced a sharp drop in the number of schools where it could recruit law students to join the legal departments of the armed services branches. Things came to a head when U.S. Rep. Gerald Solomon, a Republican who then represented a district that includes the State University of New York at Buffalo, learned that military recruiters were being barred from the law school there by order of a New York State judge. The judge, in response to a lawsuit instigated by a gay student group at the law school, was enforcing an executive order from then Gov. Mario Cuomo banning sexual orientation discrimination by state institutions. Solomon added an amendment to a pending defense appropriations bill, providing that no money would go to any institution that barred military recruiters.

Solomon’s amendment was enacted by Congress in 1994, but had little effect because initially it only affected the law schools themselves, not the full universities with which they were affiliated. The defense department during the Clinton administration was not eager to terminate defense research contracts at major universities over this issue, and found that it could recruit sufficient lawyers through other means. But responding to the ineffectiveness of his amendment on the first go-round, Solomon beefed it up the next time around to make it apply to federal funds coming from half a dozen departments, including the Department of Education, through which law schools receive lots of financial assistance for their students in the form of grants and loans. Panic ensued at the law schools after the revised amendment went into effect, and many schools allowed military recruiters to return to campus.

Stymied but unbowed, the gay and lesbian professors enlisted the help of Democratic Rep. Barney Frank. With Republicans in control of both houses of Congress, Frank enlisted an ally from across the aisle, Rep. Tom Campbell of California, who co-sponsored with him an innocuous-looking amendment that exempted any funds provided for direct student financial assistance. With all the student loan and grant money now protected, most law schools resumed excluding military recruiters.

In the wake of 9-11, however, Donald Rumsfeld’s Pentagon got tough with the law schools, amending its regulations so that an entire university would be disqualified from receiving funding if any unit of the university excluded military recruiters. Hundreds of millions of dollars in contracts were at stake, and the presidents of Harvard, Yale, and NYU ordered their law schools to let the military recruiters come back on campus, with almost all other law schools soon following suit. Many law schools tried to lessen the sting by giving grudging assistance to the military recruiters and issuing disclaimers that they were acting under protest, but the Pentagon even got Congress to specifically ban uncooperative behavior.

In response, faculty from several schools formed the Forum for Academic and Institutional Rights (FAIR) to challenge the constitutionality of the Solomon Amendment, arguing that Congress and the defense department were violating core principles of political and academic freedom by dictating to universities that they must conform their access policies to the wishes of Congress. The Supreme Court has made clear in the past that legislative interference with academic freedom may violate the First Amendment, and there is also a body of court decisions holding that certain conditions placed on federal funding may be unconstitutional. But neither area of the law is sufficiently well-developed with authoritative rulings to allow for a conclusive prediction on this case’s outcome.

Rumsfeld v. FAIR may be the case where the Supreme Court draws the line between academic freedom and national security needs. The Pentagon argues that the exclusion of military recruiters from on-campus recruiting harms its ability to hire sufficient qualified lawyers to staff the judge advocate general offices, which provide both prosecutors and defense lawyers for the administration of military justice. The defense department stresses the heightened recruitment needs from ongoing military operations, especially in Afghanistan and Iraq, that have expanded the size of the uniformed forces over the past four years. Military lawyers have played a vital role, especially in some cases as whistle-blowers against human rights abuses against detainees and prisoners of war.

Those challenging Solomon point out that the defense department has had no problem recruiting sufficient lawyers through alternative means. FAIR, representing several dozen law schools, some of which have elected to remain anonymous, and joined in the lawsuit by the Society of American Law Teachers and individual law faculty and students, also argues that the recruiters for openly-discriminatory employers have adverse effects on the educational environment.

The Third Circuit majority agreed with the FAIR arguments, emphasizing that the defense department failed to show the necessity of on-campus recruitment. But, the dissenting judge argued that the defense department did not need so show such necessity, since a First Amendment issue was not involved—the law schools could continue criticizing the Don’t Ask, Don’t Tell policy and even post disclaimers about acting in protest.

Proceeding on a parallel track is a lawsuit filed in the federal court in Connecticut by most of the Yale Law School faculty and some student organizations and individuals, in which a federal trial judge recently also ruled against the Solomon Amendment. The defense department asked the Supreme Court to take up that case in conjunction with the FAIR lawsuit, but the court has not yet responded.

Reacting to the Third Circuit decision, some law schools, including Harvard and Yale, have again begun excluding military recruiters.

The Third Circuit majority based its ruling on the Supreme Court’s 2000 Boy Scouts case, in which the court ruled that the Boy Scouts have a First Amendment right to exclude openly gay people from their organization. The government argues that the analogy does not hold, since the government is not requiring law schools to hire military officials, but merely to briefly let them on campus.

Arthur S. Leonard, a professor at New York Law School, has been actively involved in lobbying in favor of banning military recruiters at his campus, a FAIR member, and others.

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Updated 5:17 pm, July 20, 2018
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