Ruling Blocks Feds from Enforcing Military's Right to Recruit on Campuses
by Fred Jackson and Jenni Parker
November 30, 2004
(AgapePress) - A federal appeals court has ruled that colleges and universities can continue to discriminate against military recruiters without fear of losing government funding. What is in question is whether universities have the right to violate a 1996 law known as the Solomon Amendment, which says the government can refuse funding to schools that bar military recruiters from campus.
The matter became an issue in recent years because of anti-military sentiment at many universities, particularly over the Pentagon's policy on forbidding openly homosexual behavior. A network of 25 law schools and 900 law professors went to court to argue that the Solomon Amendment violated their First Amendment rights.
Initially, a lower court agreed with the government. However, a three-judge panel of the Third U.S. Circuit Court of Appeals has now ruled 2-to-1 in favor of the universities. Joshua Rosenkranz, lead counsel for the plaintiffs, hailed the latter ruling as a landmark decision.
Rosenkranz was quoted in the Washington Post as saying, "The court understood that, in a free society, the government cannot co-opt private institutions as government mouthpieces." And Boston College law professor Kent Greenfield, founder of the Forum for Academic and Institutional Rights, which was among the main plaintiffs in the case, also applauded the ruling. He called the court's decision "a big vindication of our efforts."
According to the Washington Post, lawsuits similar to this one have been filed around the country. In a November 30 article on the case, Post writer Michael Dobbs pointed out that although the Solomon Amendment applies to all kinds of educational institutions, America's law schools have often been among the most vocal protesters of what they consider to be the discriminatory policies of the U.S. military regarding homosexual men and lesbians. Some law schools have prohibited military recruiters from conducting job fairs at their schools, while others have resisted the military's recruiting efforts on their campuses in other more subtle ways.
The Solomon Amendment was enacted in 1996 but never actively enforced until the beginning of the Bush administration. Late in 2001, the Pentagon sent letters to several U.S. law schools, warning that their federal funding would be cut off unless they reversed their anti-military policies. In response, the law schools began cooperating with the Pentagon, but also filed complaints in federal court seeking to overturn the law.
Yesterday's ruling effectively accomplished that, overturning a decision by a lower court judge and marking the first time an appeals court has blocked the government from enforcing the law. The Third Circuit Court ruled that the Solomon Amendment violated the free-speech rights of schools that restrict on-campus recruiting in response to the military's ban on homosexuals. In its opinion, the court wrote that by threatening to withdraw federal funds from schools that refused to cooperate with military recruiters, the government was compelling those institutions to "express a message that is incompatible with their educational objectives."
The U.S. Department of Justice has released a statement saying it maintains its belief that Congress has the right to deny funding to universities that discriminate in this way and to protect the ability of the military to recruit Americans who want to serve their country as members of the armed forces.
