Court overturns recruiter access law

    In a 2-to-1 decision, the federal Third Circuit Court of Appeals found the Solomon Amendment — a federal law that compels universities to support military recruiters or risk losing federal funding — to be in violation of the Constitution.

    The Philadelphia-based appeals court ruled that universities maintain a First Amendment right to bar recruiters if the military’s “don’t ask, don’t tell” hiring policy violates university principles of nondiscrimination based on sexual orientation.

    “To comply with the Solomon Amendment, the law schools must affirmatively assist military recruiters … which means they must propagate, accommodate and subsidize the military’s message,” the court’s opinion stated in the case, which was brought by Harvard Law School and several other groups. “In so doing, the Solomon Amendment conditions funding on a basis that violates the law school’s First Amendment rights.”

    The court based its ruling in large part on a Supreme Court decision issued in 2000, which allowed Boy Scouts to ban openly gay scoutmasters for portraying a lifestyle inconsistent with the Scout message. Likewise, universities have the right to ban military recruiters whose “don’t ask, don’t tell” policy is inconsistent with the university’s message, the Court of Appeals ruled.

    “The military can’t just do anything it wants, going into a private organization saying help us … or suffer a huge financial penalty,” said Sharon Frase, one of the attorneys representing the plaintiff challenging the federal law. “LGBT students are promised not to be discriminated against at the university. Saying that if you’re not straight, then we don’t want you goes against that principle.”

    Judge Ruggero J. Aldisert, however, disagreed with the majority ruling.

    “No court heretofore has ever declared unconstitutional on First Amendment grounds any congressional statute specifically designed to support the military,” Aldisert stated in a dissenting opinion. “The interest of protecting the national security of the United States outweighs the indirect and attenuated interest of the law school’s speech.”

    The case was filed by the Forum for Academic and Institutional Rights, a coalition composed of 26 law schools, including Harvard and New York University, against the Department of Defense.

    The Department of Justice, which defended the government’s position on the case, has not publicly said whether it plans to appeal the decision. A spokesman for the department did not return calls seeking comment.

    Decision’s impact uncertain

    Since the court’s ruling, several schools, including Harvard Law School, have banned military recruiters from campus facilities.

    Because rulings made by the Third Circuit have no legal jurisdiction in California, the effect of the court’s ruling on UC campuses remains ambiguous.

    “A court case in the third district impacts only those institutions,” the university’s Washington spokesman Chris Harrington said. “Although a similar case could come forward, this particular case doesn’t impact our policies.”

    UCSD has historically facilitated on-campus recruiting. Former UC President David Gardner determined the military’s hiring policy for gay servicemen defensible under university nondiscrimination regulations in 1983.

    “Obvious discrimination that is blatant we have issues with,” Career Services Center Director Andrew Ceperley said. “Sexual orientation doesn’t come up because it’s not appropriate for an employer to ask a student whether he [or she] is gay or lesbian … [therefore] ‘don’t ask, don’t tell’ is acceptable by law, currently.”

    However, the Solomon Amendment and the threat of losing federal dollars may have an important influence on this policy, he said.

    “With the Solomon Amendment, we are looking at a particular exception [to university policies],” Ceperley said. “I would suspect, as a state system, that [federal aid] is a major factor in how it plays out.”

    However, with the court’s decision deeming the federal law unenforceable in its East Coast region and the potential for more challenges in other circuits, military recruitment on campus may once again become a key issue at the university.

    “This is going to be explicitly on the radar,” said Steve Rosen, a university attorney at the University of California’s Office of the General Counsel. “We are currently preparing a memo explaining the open legal issues to the [UC] president.”

    Lawmaker calls for appeal

    In 1996, Congress passed the Solomon Amendment, granting the Secretary of Defense the right to deny Department of Defense funds to any university that prohibited ROTC or military recruitment on campus. A year later, Congress expanded the penalty to include funds administered by other federal agencies, including the Departments of Transportation, Labor, Health and Education.

    Although the Solomon Amendment became law under the Clinton administration, it began to be strictly enforced after the attacks of Sept. 11, 2001.

    Rep. Richard Pombo (R-Calif.), one of the law’s co-sponsors at the time, urged the government to appeal the court’s decision in a letter to Defense Secretary Donald Rumsfeld and outgoing Attorney General John Ashcroft.

    “It is the military that ensures the freedoms of college faculty and students to voice their opinions in our open and free society,” Pombo stated. “This is a case in which two misguided judges made a mockery of our judicial system by exerting their personal political agendas into their ruling.”

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