The United States Supreme Court announced Monday they will hear a case concerning a controversial amendment Congress passed in 1994 allowing the government to withdraw funding from universities that do not allow the presence of military recruiters.
In Rumsfeld v. Forum for Academic and Institutional Rights, et al, prosecutors representing FAIR were able to prove in December in Philadelphia’s U.S. Third Circuit Court of Appeals that the government’s Solomon Amendment, which attaches financial strings to allowing military recruiters on college campuses, was unconstitutional and breached universities’ First Amendment rights.
E. Joshua Rosenkranz, an attorney for Heller Ehrman White & McAuliffe, the firm representing FAIR, said prosecutors would again attempt to show the same arguments they presented for the Third Circuit.
Rosenkranz added since the time the case was argued to the Supreme Court’s decision Monday, Congress has passed laws that make the Solomon Amendment more aggressive.
“The law originally required schools provide entry to [a] campus and access to students,” Rosenkranz said. “The law currently … [that] the school must provide to the military the same services that it provides for nondiscrimination employers.”
The issue over the Solomon Amendment dates back to 1994, when Congress passed the amendment to give military recruiters the same footing as other employers.
However, Rosenkranz and many law schools and professors argued the amendment was a breach of free-speech rights.
Because the military does not accept homosexuals, many law schools expressed desire to disallow the military from recruiting on their campuses. However, such courses of action became limited after the Solomon Amendment was passed because the government could withdraw funding from universities that barred army recruiters. Several law professors, schools and groups joined FAIR to protect their anonymity and began taking steps towards a lawsuit in the summer of 2003.
However, others argued FAIR’s arguments were unfounded.
Pentagon spokesperson Lt. Colonel Joe Richard said the Solomon Amendment meets the constitutional test.
“The real issue is that we think the military [should] have access all across the board all law schools [and] those law students soon to be graduates,” Richard said. “[To] deny the students to meet face-to-face with these recruiters … [is] fundamentally unfair and doesn’t meet the test of constitutionality.”
Additionally, the government does not believe they have discriminated against homosexuals.
“We believe … there is nothing that anyone has suggested and/or proven [that] the military discriminates,” Richard said.
According to Richard, the military is simply obeying former president Bill Clinton’s 1993 “Don’t Ask, Don’t Tell” policy, which allows homosexuals who are not open about their sexuality in the military.
Still, Rosenkranz said he felt the government did not put forth any evidence during the Third Circuit deliberations that suggested it was necessary to co-opt universities to recruit quality candidates.
“Very simply put, if the First Amendment gives bigots the rights to exclude gays, than it certainly gives academic institutions the right to exclude bigots,” Rosenkranz said.
Others believe the case will not succeed beyond the Third Circuit.
University of Wisconsin professor emeritus of law Gordon Baldwin said he thought the Supreme Court might even vote unanimously against FAIR.
“The argument, of course, is it is some kind of forced speech,” Baldwin said. “However, it doesn’t force universities to do anything; they don’t have to take the money.”
