December 3, 2004

Schools may bar military recruiters for bias, court rules

by Eric Resnick

Philadelphia--The Third Circuit Court of Appeals ruled November 29 that colleges and universities can bar military recruiters without endangering their federal funding or federal student aid.

The ruling came in a suit over the so-called Solomon Amendment, a 1995 measure which withheld all federal money unless schools allowed the recruiters.

Many schools had barred them because the military�s �don�t ask, don�t tell� ban on gays and lesbians violated their campus equality policies, which extend to employer recruiting.

The suit was brought by a coalition of law schools known as the Forum for Academic and Institutional Rights, five individuals, the Society of American Law Teachers, the Coalition for Equality of Massachusetts, and the Rutgers Gay and Lesbian Caucus.

In this decision, the circuit court used the logic of the Supreme Court in two earlier rulings against gay and lesbian participation in the Boy Scouts and a St. Patrick�s Day parade.

The Third Circuit includes Pennsylvania, Delaware, and New Jersey. The court is one step below the Supreme Court.

�And just as [gay Eagle Scout James] Dale�s presence in the Boy Scouts would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior,� wrote Judge Thomas L. Ambro for the three-judge panel, the presence of military recruiters �would at the very least, force the law schools to send a message,� that the schools accept job discrimination �as a legitimate form of behavior.�

Kenyon College in Gambier, Ohio, was one of first schools to protest �don�t ask don�t tell� by kicking the recruiters off its campus in 1992. But after the Solomon Amendment was strengthened in 1997 to bar students who attend such schools from receiving federal aid, Kenyon was forced to allow the recruiters access.

At the time, Kenyon Dean of Students Donald Omahan called it �legislative blackmail.�

The law schools, however, did not give in. Under a 1990 resolution by the American Association of Law Schools that included sexual orientation as a protected category, they had withheld career placement services to employers who discriminate, including the military.

They filed suit in September 2003 in the U.S. District Court of New Jersey. Judge John C. Lifland denied the coalition�s motion to stop the government�s enforcement of the law.

Lifland�s ruling was appealed to the Third Circuit. The three-judge panel included Ambro, a Clinton appointee, and Senior Judges Walter K. Stapelton, a Nixon appointee, and Ruggero J. Aldisert, a Johnson appointee.

Aldisert was the lone dissenter. He noted that �in the entire history of the United States, no court heretofore has ever declared unconstitutional on First Amendment grounds any congressional statute specifically designed to support the military.�

The majority, however, said that the law has �hampered recruitment� by calling attention to the military�s discriminatory policy, citing student protests and public condemnation of it.

Ambro and Stapleton said that the logic used by the U.S. Supreme Court in its 2000 Boy Scouts of America v. Dale case giving Boy Scouts the right exclude gay members and scoutmasters, and its 1995 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston case allowing St. Patrick�s Day parade organizers to exclude a gay group, also applied to the law schools keeping military recruiters off their campuses.

That logic included balancing the needs of the two groups and defining �expression� and �compelled speech.�

�The Solomon Amendment unconstitutionally conditions funding on a basis that infringes law schools� constitutionally protected interests under the First Amendment doctrine of compelled speech,� wrote Ambro.

The government may appeal the decision to be heard by the entire 22 member court, or to the Supreme Court. It has not yet announced its intention.

The Solomon Amendment, named for now-deceased Rep. Gerald Solomon of New York, was modified by Congress in 1997 and 1999, each time becoming more restrictive.

In 2001, the Bush administration required colleges to use their resources to help promote military recruiters. Congress added this to the law last summer.