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Commentary

Universities, Free Speech, and Military Recruiting - The Case of the Solomon Amendment

By Eric Nowicki

"An Army of One" - the motto of the United States Army. Yet hidden in these four words is the message: "openly gay Americans need not apply." Some argue that the "Don't Ask, Don't Tell" policy of the U.S. military is a façade for discrimination and injustice. Others say this policy merely prevents homosexual urges from compromising the integrity of the military unit. Neither of these arguments is new, but the debate has come to the fore once again in the field of higher education.

The currently pending Supreme Court case of Rumsfeld v. FAIR narrowly skirts the issue of gay rights. FAIR stands for the Forum for Academic and Institutional Rights, a coalition of law schools that refuse to facilitate employment discrimination against their homosexual students.1 The legislation they have challenged, in the case that is now before the Supreme Court, is the Solomon Amendment, which conditions all federal funding to universities on their agreement to give military recruiters every service and accommodation that is given to recruiters that don't discriminate.2 Any institution that does not comply stands to lose millions of dollars in federal grants.

The Solomon Amendment was passed in 1995 and has been continually expanded to increase its restrictions on funding to universities that don't give full access to military recruiters. Though the Amendment first affected law schools alone, more recent versions have expanded its scope, so that it now affects funding prospects for the entire university, including grants for medical research and student financial aid. Under Solomon, universities now have to contend with a delicate balancing act: they must recognize the rights of the Lesbian, Gay, Bisexual, and Transgender (or "LGBT") community, while not ignoring the needs of the rest of the student body, and the faculty, for federal funding.

FAIR argues that the legislation violates law schools' First Amendment rights to free speech and association. In particular, the group contends that law schools fundamentally believe in and teach about the ideals of equality, fairness, and justice. Central to a law school's message to its students is the idea that discrimination is wrong, and opponents of the Solomon Amendment believe that allowing military recruiters on campus forces them to endorse a message of discrimination against gays and lesbians in order to maintain eligibility for millions of dollars in federal aid.

The U.S. Court of Appeals for the Third Circuit agreed with this argument, stating that in order "to comply with the Solomon Amendment, law schools must affirmatively assist military recruiters in the same manner they assist other recruiters. This means they must propagate, accommodate, and subsidize the military's message."3 It is this decision that the Supreme Court is reviewing in Rumsfeld v. FAIR. Oral arguments took place on December 6, 2005.

Supporters of the Solomon Amendment contend that law schools that bar military recruiters are unfairly limiting the speech of the military and preventing the free exchange of ideas that is critical in any learning environment. Daniel Polsby, professor of law at George Mason University, argues that "it is flat out irrational for the law schools - or anyone else - to stigmatize the military for choices the military did not make." He notes that the military is simply obeying a statute (10 U.S.C. §654, more popularly known as "Don't ask, Don't tell") that defines eligibility for military service. "The military has no option: it must obey this law." An innocent organization, he therefore concludes, is being discriminated against.4

Other supporters of the Amendment likewise argue that it does not suppress any ideas, but in fact promotes discussion and debate on the law school campus. They maintain that the military, like all other groups, should have a chance to promote its vision in a marketplace of ideas, and that nothing in the Amendment prevents people who oppose military policies from protesting "Don't Ask, Don't Tell" on campus, by handing out leaflets, posting signs, holding teach-ins, and conducting other such activities.

FAIR and its supporters reply that they do not oppose the military's placing flyers and leaflets in student mailboxes or engaging in other recruitment activities that do not put law schools in the position of seeming to endorse the military's message. Different law schools have interpreted this concept in different ways. For example, Yale Law School allowed student groups to invite the military on campus, but had Yale College rather than law school personnel schedule interviews. Boston College Law School allowed the military on campus, but kept its recruitment literature in the library rather than the career services office.5 These arrangements, the law schools felt, gave military recruiters access without direct support, thereby leaving the law schools' non-discrimination message intact.

But Congress found these arrangements unacceptable and mandated that law schools must provide space and resources for military recruitment that are precisely equivalent to the treatment given the "most favored recruiter" on campus, if they want to receive any federal funds. According to this expanded Congressional mandate, law schools must provide services to military recruiters that are equal in quality and scope to the services given to employers that do not discriminate.

Rumsfeld v. FAIR highlights a larger dilemma for universities, and indeed, for any institution that receives government funding or other benefits. At what point does their need for funding outweigh their commitment to students' rights, or any other worthy goal? As Chief Justice Roberts put it during the Supreme Court argument, universities seem to be saying: "this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."6

How could they? Law schools are compelled by the larger university to accept military recruitment on terms exactly equal to the services given to nondiscriminatory employers due to the sizeable sum that the university would otherwise lose because of the Solomon Amendment. The hundreds of millions of dollars to which Roberts alluded is a lot of money to lose, particularly for medical and graduate schools where research depends on continued government funding.7

The practice of attaching conditions to government funding, of course, is not new. Supporters of the Solomon Amendment point to Title VI of the 1964 Civil Rights Act, which provides that "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."8 There is little doubt that Congress can impose this condition on funding, regardless of whether institutions feel that it violates their free speech and association rights.

Not all conditions on funding are legitimate, though, and where such conditions interfere with core First Amendment activities or aim at the suppression of ideas that the government disfavors, the Supreme Court has struck them down.9 The fundamental question in Rumsfeld v. FAIR is whether the Solomon Amendment actually interferes with the law schools' right to free speech or aims to censor their message of opposition to "Don't' Ask, Don't Tell."

At the Supreme Court argument, most of the justices seemed to find the law schools' claim of compelled speech unconvincing. Justices Kennedy and O'Connor said that the Solomon Amendment doesn't prohibit students and faculty from protesting the presence of recruiters. Chief Justice Roberts also seemed wary of the notion that by granting recruiters equal access, the universities would be adopting the military's message that discrimination based on sexual orientation is acceptable.10

Certainly, most of the justices did not seem to agree with FAIR's argument that supporting military recruitment sends the message that the law school is not committed to its policy of anti-discrimination, or that its support for its LGBT students appears less sincere when it is unwilling to forego funding in order to abide by a principle it believes in. But FAIR maintained that even if law schools are able to state their opposition to the recruiters via protests and other such means, their ability to convey a message of non-discrimination is stifled because they are unable to hold the military to the same standard as they hold all other employers.

An amicus brief submitted by Columbia Law School, in fact, argued that the military was given equal access to the law school: like all other employers, it was required to abide by an anti-discrimination policy in order to recruit on campus. Because the military refused to abide by that policy, it was really asking for unequal and preferential treatment, not just the same treatment that is given to other employers.11

Since the majority of Supreme Court justices did not seem persuaded by these claims made by FAIR and its supporters, pundits are now asking not whether FAIR will lose, but how. In the coming months, commentators will be speculating on which issues the Court will choose to engage in its opinion. Will it suggest that there is no First Amendment issue in the case because opponents of the military's "Don't Ask Don't Tell" message are not prevented from speaking out against it? Or will the Court use this opportunity to broaden Congress' ability to condition funding on whatever it deems appropriate?

The Court may choose to highlight the First Amendment interests on either side. While the government contends that denying access to military recruiters distorts the free marketplace of competing ideas, FAIR argues that a law school's free speech and association rights are violated when its message of non-discrimination is undermined.

December 16, 2005

Neema Trivedi and Marjorie Heins contributed to this article.

Update: On March 7, 2006, the Supreme Court unanimously reversed the Third Circuit and upheld the Solomon Amendment.

To view all the briefs in the case, see http://www.law.georgetown.edu/solomon/FAIRvRumsfeld.html

NOTES

1. "Welcome to Solomonresponse.org," www.Solomonresponse.org (visited 12/11/2005).

2. The law states that no federal funds "may be provided by contract or by grant to an institution of higher education" if the Secretary of Defense "determines that that institution (or any subelement of that institution) has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents" any military recruiter "from gaining access to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer." It also requires institutions to give the military detailed information about all students over 17. 10 U.S.C. §983.

3. FAIR v. Rumsfeld, 390 F.3d 219, 236 (3rd Cir. 2004).

4. Daniel Polsby: "The Solomon Amendment's Strings are Light," American Constitution Society Law Blog, Dec. 1, 2005, http://www.acsblog.org/solomon-amendment-fair-v-rumsfeld-2346-polsby-the-solomon-amendmentas-strings-are-light.html (visited 12/13/2005).

5. Brief for the Respondents, Rumsfeld v. FAIR (S. Ct. No. 04-1152), p. 7-8, http://www.law.georgetown.edu/solomon/documents/briefFAIR.pdf (visited 12/14/05).

6. Linda Greenhouse, "Supreme Court Weighs Military's Access to Law Schools," New York Times, Dec. 7, 2005, http://www.nytimes.com/2005/12/07/politics/07scotus.html (visited 12/13/2005).

7. The penalty for violating the Solomon Amendment is $300 million for Yale and Harvard, and $130 million for New York University. Brief for the Respondents, Rumsfeld v. FAIR (S. Ct. No. 04-1152), p. 6.

8. 42 U.S.C. § 2000d.

9. Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819 (1995); Legal Services Corporation v. Velasquez, 531 U.S. 533 (2001).

10. Greenhouse, "Supreme Court Weighs Military's Access to Law Schools," New York Times, Dec. 7, 2005, http://www.nytimes.com/2005/12/07/politics/07scotus.html (visited 12/13/2005).

11. Brief Amici Curiae of 56 Columbia Law School Faculty Members in Support of Respondents, Rumsfeld v. FAIR (S. Ct. No. 04-1152), http://www.law.georgetown.edu/solomon/documents/FAIRamicusColumbiaFaculty.pdf (visited 12/13/05).

 


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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