Challenging The Wisdom Of The Solomon Amendment

Yesterday, the Supreme Court heard arguments in the case of The Forum for Academic and Institutional Rights vs. Rumsfeld, a case brought concerning the treatment of military recruiters by law schools in the United States. These law schools risk losing their federal funding, as does the entire university of which they are part, due to a law referred to as the Solomon Amendment.

Essentially what the Solomon Amendment says is that law schools are required to give equal access to military recruiters or else the entire university in question loses its federal funding. Originally, the law only denied Department of Defense funds to the law school itself, but since few law schools receive DoD funds, the law was amended to punish the entire university.

Of course, this begs the question of why law schools are banning military recruiters.

From The ACLU:

Over the years, universities have barred military recruiters from their campuses for reasons ranging from opposition to the Vietnam War to objections to the exclusion of women from the military. Today, law schools refuse to let any employer recruit on their campuses unless it is willing to promise that it does not discriminate on the basis of sexual orientation, among other characteristics. Because the military could not make this promise, its recruiters were barred.

[snip]

"Through 'don't ask, don't tell', Congress has embraced a policy of discrimination against openly gay lesbian and gay servicemembers. Congress may not force law schools to support or promote this discriminatory point of view," said Ken Choe, a senior staff attorney with the ACLU's Lesbian and Gay Rights Project.

In essence, what the law schools are saying is that they believe an academic institution must maintain a non-discriminatory culture, and they hold potential recruiters to that standard. This is why the charge by the government that military recruiters are not being given equal access is bogus; the military, with its onerous "Don't ask, Don't tell" policy, is requiring a more lax standard for its recruiters than those required of corporate recruiters. It's worth noting that many law schools don't have an outright ban on military recruiters anyway; they simply refuse them the same administrative aid that other recruiters receive.

On the surface, this sort of issue plays right into the divisive pro-military, anti-academia rhetoric popular on the Right. But just labeling this case as an attack by "liberal academia" on "our troops" is to miss the point of what's really going on here. After all, the case in front of the Supreme Court is not arguing about whether "Don't Ask, Don't Tell" is appropriate or Constitutional (it's neither). It's challenging the government's right to use the withholding of federal funding as a tool to enforce unwanted ideological policy on academic institutions. That makes it a First Amendment question rather than a question of gay rights.

According to NPR, the case did not get a particularly warm reception at the Supreme Court. Justice O'Connor essentially argued that the law school could always maintain it's opposition to the military's policy while still allowing military recruiters unfettered access. No doubt this sounds reasonable to the "words speak louder than actions" crowd on the Right, but it has not settled nearly so well with the students of these schools, whose protests have bolstered the recruiter bans. However, when the attorney for FAIR expressed this opinion, Chief Justice Roberts essentially dismissed it by implying that the university should refuse federal funding to make its principled stand.

If this was a discussion about private source funding, I would agree with Roberts. But the case concerns public funds from the taxpayers, and the government should not have the right to use public funds to bully its way into a preferred status. If the military wants its recruiters to have the same access to law schools as other recruiters do, then the military brass should lobby Congress to have "Don't Ask, Don't Tell" struck down. Removing such benefits both the universities and the military.

Military recruitment is important, especially given that the Bush Administration doesn't have the political fortitude to institute a draft. The government cannot use the needs of the military and the U.S. Treasury to force onerous anti-civil rights stances on other institutions. Law schools are taking a stand in support of personal freedom and diversity, two things that make our society a place worth defending. Restricting funds for educational institutions in order to push conservative moral beliefs is an abuse of the public trust. It's also an abuse of our military, which has to bear the burden of Bush's ideological intractability.