Opposition to Don’t Ask, Don’t Tell Underscored

Not all agree Solomon ruling a disaster, but anger at military’s bias unabated

In a unanimous decision on Monday, the U.S. Supreme Court rejected a free speech challenge to the Solomon Amendment, ensuring that universities that continue to ban military recruiters in protest of the Don’t Ask, Don’t Tell policy must do so at the cost of forfeiting federal money.

FAIR, the Forum for Academic and Institutional Rights coalition, a group of law schools and faculty bodies, had challenged the constitutionality of a law amended several times since the 1990s that requires universities accepting government money to allow military recruiters access to students, despite school policies that ban recruiters from employers who discriminate on the basis of sexual orientation.

Justice Samuel Alito, confirmed on the bench earlier this year, took no part in the case because it was heard before he joined the Court.

The decision, although closely watched, was not a surprise. Gay groups used the moment to criticize Don’t Ask, Don’t Tell, which prohibits open military service by gays and lesbians.

“The most important issue was not addressed—the underlying prejudice that gave rise to Solomon Amendment,” said Steve Ralls, spokesman for the Servicemembers Legal Defense Network, a group that assists military personnel affected by the DADT policy. “There was no ruling regarding the real question of when we will allow gays and lesbians who want to serve to do just that.”

“The American government shouldn’t be in the business of sidestepping anti-discrimination policies,” said Joe Solmonese, president of the Human Rights Campaign, the Washington-based LGBT civil rights group.

However, not all gay observers considered the Supreme Court decision a disaster for LGBT Americans.

“A ruling striking down the Solomon Amendment had the danger of allowing anti-gay conduct in other contexts,” said Jon Davidson, legal director at Lambda Legal, a leading LGBT rights group. “The earlier ruling that supported the universities was based on the Dale decision which upheld the right of the Boy Scouts to exclude gay people. We weren’t enthusiastic if this reasoning was extended further. It’s quite possible it would have allowed Christian schools to exclude gay people or groups from campus.”

FAIR had claimed that allowing military recruiters onto the campuses violated their free speech rights because they were being forced to conform to a policy with which they do not agree.

Chief Justice John Roberts, writing his third decision since joining the Court, said this was not the case.

“A military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message,” Roberts wrote. “Students and faculty are free to associate to voice their disapproval of the military’s message.”

Roberts also briefly noted that Congress’ power to raise an army gives it great latitude, including even forcing schools that do not accept federal money to allow military recruiters access to students.

The court also stressed that the military’s right to have all options available for filling the ranks was especially important during the current wartime.

The Army, Army National Guard, Army Reserve, Navy Reserve, and Air National Guard all missed their recruiting goals in 2005.

The Solomon Amendment was enacted after law students at the State University of New York at Buffalo forced their school to bar military recruiters in the 1980s, in the wake of a non-discrimination policy enacted by Democratic Governor Mario Cuomo. At first, the military only enforced the funds cut-off specifically against law schools barring recruiters, but Congress expanded the law to cover nearly all government money given to a law school or its larger affiliate university.

Attaching requirements to federal funding is not new. In the past, the U.S. government has used such strings to ensure equal treatment for women’s athletic programs, for example. These caveats have been upheld because schools are always free to decline government money.

The overall financial threat to American higher education under Solomon is significant. Government spending at universities for research and grants exceeds $35 billion dollars a year. Much of this money goes to university-run hospitals. It is estimated that some large institutions such as Harvard, whose law school faculty was also part of the FAIR suit, receive $100 million annually.

“We probably forgo about $500,000 a year because we won’t allow military recruiters onto campus,” said Pete Miller, spokesman for Vermont Law School, about funding the school does not seek knowing it is ineligible. Vermont is one of three schools that currently deny access to the U.S. military, along with New York Law School and St. Paul’s William Mitchell College of Law.

Miller said Vermont Law School intended to continue to bar recruiters as it has for the past decade.

However, these schools only receive federal money in the form of financial aid, a source the Solomon Amendment exempts.

For George Washington University in Washington, one of the few schools that allowed its name to be attached specifically to the FAIR lawsuit, the amount is far more significant.

“We have so many programs and grants there’s no way to guess what sort of financial threat a cut-off would mean to the university,” said Claire Duggan, spokeswoman for the GWU’s Law School.

GWU Law School Dean Frederick Lawrence said in a statement, “Yesterday’s ruling will have no immediate effect on our Law School recruiting policies. The Law School has always allowed military recruiters free access to the school and the campus. However, it has made, and will make in the future, public notice of the discriminatory nature of the Department of Defense’s Don’t Ask, Don’t Tell policy.”

Harvard Law School has excepted military recruiters from its non-discrimination policy since 2002, when Harvard University was threatened with losing government funds.

After Monday’s Supreme Court ruling, Dean Elena Kagan sent out the following statement: “I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy.”

Roberts’ message was also noted by Davidson of Lambda Legal.

“Justice Roberts really seems to be encouraging people to protest the policy if they disagree with it,” he said. “I hope his words and this ruling are a catalyst for more activity to overturn Don’t Ask, Don’t Tell.”

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