By Kent Greenfield

Monday, November 10, 2003; Page A25

Imagine if the government took away the driver's license of anyone who opposed pay raises for government bureaucrats. Imagine it cut off Social Security benefits to retirees who protested the Iraq war. Suppose it withheld a university's cancer research funds because the school refused to support the military's policy of discrimination against gays and lesbians.

That last example isn't imaginary -- it's the law of the land. The law is called the Solomon Amendment, and it gives the Department of Defense the power to cut federal funds to universities unless they give up deeply held beliefs about the equality of students.

The statute is pockmarked with constitutional flaws. Primary among them is the government's attempt to use the power of the purse to reshape the academic environment and suppress educational messages in ways it could never accomplish by direct command.

For decades virtually every American law school has maintained anti-discrimination policies that include traits having no relation to merit: race, national origin, gender, religion, disability, veteran status and sexual orientation. This commitment to nondiscrimination is a fundamental element of law schools' educational policies, because we cannot teach our students about justice when some students feel they are being judged on illegitimate grounds. We cannot teach our students to be advocates for equality when some are deemed second-class citizens on the basis of who they are, what they look like or who their partner is. Nondiscrimination is a core belief, a central aspect of our constitutionally protected academic freedom.

This commitment to nondiscrimination applies not only in our classrooms and admissions offices but in our career services departments as well. Law schools thus refuse to aid employers that discriminate in recruiting our students. If prospective employers are looking for the best and the brightest, we are delighted to help. But if an employer is looking only for white students or Catholic students or straight students, we will not assist him in recruiting.

Because of the armed services' discrimination against gays and lesbians, law schools have excluded military recruiters from campuses for more than 20 years. For most of that time, the military did not complain. The government was easily able to recruit military attorneys without the aid of law schools. Things changed about two years ago. Aggressively applying the previously dormant Solomon Amendment, the Defense Department started targeting law schools around the country. Military recruiters would send a letter to a university, threatening to cut off all federal funds not only to the law school but to the university as well, unless the law schools caved.

While the country was at war fighting to promote democracy abroad, the Defense Department was telling law schools at home that dissent would cost their universities money promised for research into everything from AIDS to rocket science. When one law school asked for a clarification of the military's interpretation of the statute, the government said that such a request for clarification constituted a refusal to comply with the law and was grounds for cutting off federal funds. Heavy-handed indeed.

Law schools could not resist such threats for long. As of this summer, every law school whose institution receives federal funds had given in to the military's demands and suspended its nondiscrimination policies as applied to military recruiters. Military recruiters have been showing up at these campuses for the fall recruiting season.

Law schools across the country have decided to fight back. They have formed an organization called the Forum for Academic and Institutional Rights (FAIR), to oppose the government's violation of the schools' First Amendment rights. FAIR, along with the nearly 1,000 law professors represented by the Society of American Law Teachers and a coalition of student groups, has brought suit against the Department of Defense to challenge Solomon as a violation of the First Amendment. A few days ago, a federal judge denied the government's motion to dismiss, allowing the case to move forward.

To paraphrase former Boston College dean James Rogers, we would not pretend to tell the government how to run the military. The military should not be telling us how to run law schools.

The writer is a law professor at Boston College and president of the Forum for Academic and Institutional Rights.