Can colleges, in this instance law schools, bar military recruiters from their campuses because of the schools’ policies not to discriminate, as the military does?
This was the central question in oral arguments heard Monday by the U.S. Supreme Court in Rumsfeld vs. Forum for Academic and Institutional Rights. The latter is an association of about three dozen law schools.
The lawsuit reopens one of the most contentious issues of the early 1990s, when the U.S. military, in response to the Clinton administration’s effort to allow gays to serve openly in the military, affirmed the infamous “don’t ask, don’t tell” policy. In essence, gay people can serve, so long as they don’t practice gay sex or let anyone know they are gay. As soon as one tells any higher-up that one is gay, it’s grounds for immediate dismissal.
The policy was an uneasy truce between those who believe openly gay behavior in the military could affect combat readiness and troop cohesiveness, and those who believe the policy is not based on anything connected to morale, competence or ability of a military unit to function as a unit. Bottom line, it’s simply a hypocritical attempt to square old traditional attitudes with the fact that some gay people want to serve in the military.
In the Rumsfeld case, a number of law schools claimed the policy conflicted with their commitment to resist discrimination, or at least certain kinds of discrimination. Law schools typically have nondiscrimination policies that require employers who interview on campus to certify that they do not discriminate in their employment practices, including criteria such as age, disability and sexual orientation. The schools started to bar military recruiters on the grounds that the military had policies that promote prejudice, even as they would bar the Ku Klux Klan.
In response, in 1995 Congress passed the Solomon Amendment, which threatened to cut Defense Department funding to any school that did not allow the military to recruit on campus. In 1997 the law was broadened to put at risk even more funding, including guaranteed student loans, work-study funds and research money.
The Forum for Academic and Institutional Rights challenged this law in court, and the 3rd U.S. Circuit Court of Appeals agreed, opining that “the Solomon Amendment violates the First Amendment by impeding the law schools’ rights of expressive association.”
In other words, forcing schools to associate with and assist military recruiters violates free speech and free-association rights.
As Chief Justice John Roberts noted during oral arguments, however, “You’re perfectly free to do that if you don’t take the money.” Private law schools (most of those in the suit are private) are not entitled to money from the taxpayers without any strings attached.
It’s a stretch to say this violates First Amendment rights, although a plausible case can be made. In the end, the case may come down to that hoary old legal principle, “He who pays the piper calls the tune” and bend toward the government.
Perhaps the best way to cut through the hypocrisy, however — especially since recruiting is becoming more difficult in light of the Iraq war — is to repeal the “don’t ask, don’t tell” rule and let all who want to serve do so openly and honestly.