A federal appeals court ruled Monday that colleges which ban military recruiters from their campuses cannot be penalized with the loss of federal funds. Some colleges and universities previously had barred access to military recruiters in response to the military's "Don't ask, don't tell" policy, which the institutions claim conflicts with their anti-discriminatory practices.
In Forum for Academic and Institutional Rights (FAIR) v. Rumsfeld et al., the U.S. Court of Appeals for the 3rd Circuit ruled 2-1 to overturn the Solomon Amendment, a 1996 federal law requiring institutions of higher education to allow military recruiters to operate on campus or face a withdrawal of funding. The court deemed the law unconstitutional under the First Amendment's free speech protection.
Specifically, the Solomon Amendment resulted in the loss of federal Department of Defense funding to colleges that banned military recruiters. Congress expanded the law last month to ensure that colleges give military recruiters "equal access and scope" as nonmilitary recruiters.
According to the FAIR Web site, plaintiffs in the case saw the mandatory access given to military recruiters as a prerequisite for federal funding as offensive and unconstitutional. FAIR is headed by Boston College Law Prof. Kent Greenfield and consists of 25 law schools.
"At a bare minimum, the military recruiter's presence stands for the recruiting message, 'We Want You,' or, more accurately, the discriminatory -- and to plaintiffs, offensive -- message, 'We Want You Only If You're Straight,'" the Web site said.
Federal Court of Appeals Judge Thomas L. Ambro delivered the 102-page opinion of the court on the case and agreed that the law was unconstitutional.
"The Solomon Amendment 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," Ambro wrote.
The Justice Department, representing the federal government in the case, did not immediately return phone calls yesterday. However, the agency did release a statement to news media.
"The United States continues to believe that the Solomon Amendment is constitutional. As we argued in our brief, we believe that Congress may deny federal funds to universities which discriminate and may act to protect the men and women of our armed forces in their ability to recruit Americans who wish to join them in serving our country," the statement said.
David Laibstain, co-president of the Lambda Law Society at the University, said the decision will not have a major impact on University law students. Laibstain said the Judge Advocate General school's close proximity to the Law Grounds makes the ruling less of an issue.
But, he added, the case does send a strong message to the military.
"It allows universities to keep [military recruiters] off-campus without giving them an affirmative support -- sending them a message that the military's discriminatory policy is wrong and unjust," Laibstain said.
Judge Ruggero John Aldisert wrote the dissenting opinion for the court, stating that the Solomon Amendment did not violate the First Amendment.
"I apply the balance-of-interests test and decide that the interest of protecting the national security of the United States outweighs the indirect and attenuated interest in the law schools' speech, expressive association and academic freedom right," he wrote.
University spokesperson Carol Wood said she was unaware of any military recruitment restriction on Grounds.
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