By Charles Lane
Washington Post Staff Writer
Tuesday, May 3, 2005
The Supreme Court announced yesterday that it will decide whether some law schools may curb military recruiters' access to their students in protest of the U.S. armed forces' ban on openly gay members.
On its face, the case is a struggle between Congress's power of the purse and academic freedom; the court is being asked to rule on the constitutionality of the Solomon Amendment, a federal law that requires universities to give military recruiters equal access, or risk millions of dollars in federal funding.
In a larger sense, however, the case is a battle within the larger culture wars, a clash between the Bush administration, which is deeply committed to its support base among social conservatives, and its perennial critics on the nation's law school faculties, many of whom are no less committed to gay rights.
Thirty-one law schools, grouped under the banner of the Forum for Academic and Institutional Rights (FAIR), say that the Solomon Amendment is inconsistent with their constitutional right to free speech. They say they should be free to shun a policy they consider discriminatory.
But supporters of the law say that those who want the government's money often have to take it on the government's terms, with strings attached.
As currently enforced, the Solomon Amendment could result in the cutoff of federal money to an entire university because of the actions of any of its undergraduate or graduate programs. So far, though, no university has lost federal money.
In September 2003, FAIR, along with other law teachers and students, sued to block enforcement of the amendment but lost in federal district court in New Jersey.
Last year, however, the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit granted FAIR an injunction against enforcement of the Solomon Amendment, saying it "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."
That is the judgment the Bush administration seeks to reverse at the Supreme Court.
"Effective recruitment is essential to sustain an all-volunteer military, particularly in a time of war," Acting Solicitor General Paul D. Clement told the court in a brief. "The Solomon Amendment reflects Congress's judgment that a crucial component of an effective military recruitment program is equal access to college and university campuses."
The roots of the Solomon Amendment, named for its House sponsor, former representative Gerald B.H. Solomon (R-N.Y.), lie in the 1980s, when some law schools began denying access and assistance to military recruiters, citing the armed services' ban on openly gay members.
The 1993 promulgation of the current "don't ask, don't tell" policy, which permits gay men and lesbians to serve in the armed forces as long as they do not openly discuss their sexual orientation, did little to settle the controversy.
Billed as a compromise alternative to President Bill Clinton's proposed lifting of the ban on gays in the military, "don't ask, don't tell" was immediately decried by supporters of gay rights, and the military has continued to investigate and expel gay personnel.
The first version of the Solomon Amendment, adopted in 1994, threatened schools only with a loss of Pentagon funding. In 1997, Congress expanded the amendment's scope to include money from other agencies.
Under Clinton, the Defense Department permitted schools to refuse to help military recruiters, as long as they let them at least visit campus.
Harvard Law School, for example, allowed military recruiters to interview students at the offices of its Veterans Association, but did not use its own personnel to set up the interviews.
This approach allowed universities to retain federal funding without violating their antidiscrimination policies.
After the Sept. 11, 2001, attacks, the Bush administration concluded that the law schools must provide the same services to military recruiters as they offer to others.
Among the schools told that they might be in danger of losing federal money was Yale, whose law school had been letting recruiters use a room to meet with students, but had not been helping arrange interviews.
Last year, Congress enacted this new Pentagon policy into law, requiring access "that is at least equal in quality and scope" as that offered other employers.
The membership of FAIR includes New York University, Georgetown and George Washington University law schools. But 13 of the group's 31 members chose not to identify themselves publicly "for fear of retribution" by Congress or donors, said E. Joshua Rosenkranz, a lawyer who represents FAIR.
The case is Rumsfeld v. FAIR , No.04-1152. Oral arguments will take place in the fall, and a decision is expected by July 2006.