In the military, the “don’t ask, don’t tell” policy for gays is as commonplace as the phrase “hoo-ah.” The Supreme Court is putting a spotlight on it as justices mull a case that pits recruiters against colleges that call the military policy discriminatory.
At stake is the Solomon Amendment, which restricts federal funding for universities that ban military recruiters from their campuses.
In December, a coalition of 36 law schools challenged the amendment before the Supreme Court, and was met by a hesitant and sometimes argumentative bench.
“I wasn’t optimistic going in, and I surely wasn’t going out,” said Michael Rooke-Ley, former president of the Society of American Law Teachers, one of the plaintiffs in the case.
A court decision to uphold the law could set off campus protests, according to Rooke-Ley. The trend has already begun at the University of California, where last spring, a career fair at UC Santa Cruz was disrupted by protests against the military’s ban on open homosexuals.
While UCSD has had a less torrid history with the policy, students have been active when military recruiters come to campus, UCSD Lesbian, Gay, Bisexual, Transgender, Queer and Intergender Resource Center Director Shaun Travers said last fall.
The problem is not about protests but about access, according to Solicitor General Paul D. Clement, who represented the Department of Defense in the Supreme Court case. Confrontation with military recruiters on campus would not violate the Solomon Amendment, but barring them would, he said.
Congress first passed the amendment to the National Defense Authorization Act in 1995 as a response to anti-discrimination policies enacted often decades earlier by some universities.
UCSD Career Services Director Andrew Ceperley said that protests at campus job fairs are not problematic, with no attempts made to block students’ access to the recruiting stands.
During the court hearing, Clement questioned whether recruitment constituted a speech issue.
The schools’ case is built on a 2000 Supreme Court ruling in which justices said forcing Boy Scouts to accept openly gay scoutmasters would violate the group’s free speech rights.
“I think, with respect to what the military itself wants, it simply does not want [what is] primarily a speech activity to take place, it wants access for recruiting, which is a traditional commercial enterprise,” Clement said.
On one of the few occasions that E. Joshua Rosenkranz, the lawyer arguing on behalf of the schools, was able to complete a sentence without interruption from the bench, he insisted that the schools’ First Amendment right to academic freedom was being violated.
“The problem with [the] Solomon Amendment is that the unconstitutional-conditions doctrine says that you can’t put a private speaker to that crisis of conscience,” he said.
Newly installed Chief Justice John Roberts rejected this claim, arguing that schools are free to deny access to recruiters.
“You’re perfectly free to do that if you don’t take the money,” he said.
The amendment complicates a school’s hopes to uphold both its ethical principles and financial support of research, and could hold large implications for all UC campuses, according to UC General Counsel Steven Rosen.
“The government could argue that an ‘institution of higher education’ under the relevant federal law extends to an entire university system,” he said last fall. “In theory, the entirety of UC’s research funding could be jeopardized by one campus denying access to recruiters.”
However, UC Davis law professor Tobias Wolff said that the court’s decision does not need to have a significant impact on a school’s freedom.
“If they rule [to uphold the Solomon Amendment], my expectation and hope is that they will write a narrow opinion that will not have broad implications for other important values, like academic freedom,” he said. “The type of intrusion that the law schools claimed in this case is very different from interference with the curriculum or the classroom.”
