In a win not only for gay rights advocates but also for university and college campuses nationwide, the 3rd U.S. Circuit Court of Appeals ruled Monday that the federal government cannot compel law schools to allow military recruiters access to their campuses by threatening to withhold all federal funding, since the Pentagon’s policy of prohibiting gays and lesbians from entering the military is at odds with the anti-discrimination policies of almost all American law schools.
The Solomon Amendment, a federal law enacted in 1994, allowed the Secretary of Defense to deny federal funding to any institution of higher learning if it prohibited ROTC or military recruitment on campus. Several law schools resisted the law, arguing that the presence of military recruiters on their campuses ran counter to institutional anti-discrimination policies on admissions, grading and hiring. After the Pentagon threatened to deny federal funds to schools that continued to bar recruiters from their campuses, a consortium of 25 law schools and over 900 law professors filed suit, arguing that the enforcement of the law violated their First Amendment rights.
In a 2-1 opinion, the 3rd Circuit agreed, with Judge Thomas L. Ambro writing for the majority that “[t]he Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom.” In addition to arguing that the military’s “need for legal talent” could not override First Amendment speech protection, Ambro pointed out that the controversy surrounding the Solomon Amendment actually works against recruitment goals.
Although the case may eventually be decided in the Supreme Court, Monday’s ruling was a clear victory for schools that choose to implement non-discrimination policies. The Solomon Amendment itself was drafted in response to the American Association of Law Schools’ 1990 decision to make sexual orientation a protected category in member schools’ non-discrimination policies. A compromise of sorts was achieved in 1999, when the law was amended to target only schools that actively prohibited recruiters from meeting with students. Many schools were thus able to avoid denials of funding by merely allowing military recruiters to enter campuses, but not actively putting them in touch with specific students (as is commonly done with recruiters from other employers). Military recruiters, meanwhile, could still remain on campus and were available to interested students.
However, in the wake of the attacks of September 11th, the Pentagon began to demand complete access to campuses and students, prompting the schools’ suit. It now seems that the Department of Defense, in pushing for more access, has lost what it already had.
Ironically, part of the basis of the 3rd Circuit’s decision was the 2000 case of Boy Scouts of America v. Dale, in which the Supreme Court found that the Boy Scouts could not be compelled to accept or hire an openly gay scoutmaster, as this conflicted with the group’s stated philosophy. “Just as the Boy Scouts believed that ‘homosexual conduct is inconsistent with the Scout Oath,’ the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness,” Judge Ambro wrote in the 3rd Circuit’s decision. And just as the First Amendment protects the Boy Scouts’ right to adopt such a policy, so does it protect law schools’ interests in promoting a culture of justice and equal opportunity.
Historically, the nation’s law schools have kept policies of denying direct access to students to prospective employers whose hiring practices discriminate on the basis of race, sex or religious belief. And ever since 1948, when President Truman ordered the desegregation of the armed forces, the U.S. military has been on the vanguard of integration and increased equality of opportunity in employment. As colleges and universities have recognized sexual preference as a protected category, so should the armed forces. Monday’s decision was not only a victory for academic integrity and equal rights, but it was also a clarion call for a closer look at the military’s policy on admitting homosexuals into its ranks. Hopefully the death of the Solomon Amendment will prompt a debate that could bring the goal of a completely integrated military one step closer to reality.
Rob Hunter ([email protected]) is a senior majoring in political science and philosophy.
