In a move that could have serious implications for institutions of higher education in general, the Supreme Court of the United States granted a writ of certiorari on May 2 to the high-profile FAIR vs. Rumsfeld case. When the court reconvenes in October, it will consider whether colleges and universities that restrict military recruiters on campus have to forfeit federal dollars as a result.
The case centers on the controversial Solomon Amendment sponsored by former Rep. Gerald B.H. Solomon, R-N.Y., requiring colleges and universities around the nation to grant equal access to military recruiters, despite the military's "Don't Ask, Don't Tell" policy that conflicts with universities' policies of nondiscrimination of homosexuals.
Many at Dartmouth are paying close attention, as many undergraduate Reserve Officer Training Corps members have been fighting for more support from College administrators. A recent poll conducted by the Student Assembly found that Dartmouth students overwhelmingly supported the ROTC program.
The amendment, originally passed in 1995, originally only stripped non-complying universities of Defense Department funds; however, over the past ten years, it has been strengthened to include the loss of funding from the departments of Education, Health and Human Services, Labor and Transportation. Furthermore, while the law initially could only penalize certain schools or institutions within a university, Congress toughened the amendment by permitting the withholding of funds from the entire university or college.
Arguing that the Solomon Amendment constitutes a violation of their free speech rights, a group of 31 law schools cloaked under the Forum for Academic and Institutional Rights, or FAIR, filed a lawsuit with a federal district court in New Jersey but lost the case.
According to visiting government professor Ernest Young '90, who teaches a course on the Supreme Court and the Constitution, the policy of nondiscrimination has been placed on accredited law schools from the Association of American Law Schools, so the law schools have no choice but to adopt the policy. This fact could make it more difficult to portray the issue as a case of freedom of speech on the part of the law schools, Young said.
The group appealed the case to the U.S. Court of Appeals for the 3rd District in Philadelphia, which imposed an injunction on the enforcement of the Solomon Amendment since 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."
The Department of Justice filed an appeal on Feb. 28 on behalf of the Defense Department, asking the Supreme Court to hear the case. The Bush administration and the Defense Department have argued that the ability of military personnel to recruit on university campuses constitutes a matter of national security, especially during a time of war.
"The Solomon Amendment reflects Congress' judgment that a crucial component of an effective military recruitment program is equal access to college and university campuses," Acting Solicitor General Paul Clement said in a court brief.
The AALS maintains a strict nondiscrimination policy, which prohibits law schools from discriminating based on race, color, religion or sexual orientation.
On-campus recruiters are also required to certify that they abide by the same principles of nondiscrimination.
Young said he believes that the decision of some of the best law schools in the country not to allow military recruiters could prove counter productive.
"You want the cohort of lawyers and officers and enlisted people to reflect the best that society has to offer," Young said.
Young also said that it is difficult for college administrations to choose between defending gay students who are not allowed to serve openly in the military and students who actively serve in the armed forces and depend on military recruiting for careers.
He witnessed this conflict while teaching at Harvard Law School, where he taught a fair number of students in the military.
"They felt that the policy of not allowing the military recruitment was a slap in the face to them, [while] the gay students felt that allowing the military to do so was," Young said.
Young added that restricting military recruitment would prevent those students who attend law schools, where acceptance and nondiscrimination are preached, from being able to enter the military and have an influence over the policy.
"Even if your only goal is how to pressure the military into changing their policy on gays, I think you would want there to be a strong push to get as many of your people into the military as possible," Young said.
The Supreme Court plans to hear oral arguments for the case on Dec. 6. New York University, Georgetown and George Washington law schools are among the law schools fighting the Solomon Amendment under FAIR.
Young cited his own Dartmouth education as valuable in teaching the importance of tolerance.
"I think the more people who have had an education like that are in the military, the quicker the policy will get changed," he said.
