Special Report

Judges Ambush Military Recruiters

In overturning the Solomon Amendment, a federal appeals court tells universities and law schools federal grants are a right, not an obligation, national security be damned.

By 11.30.04

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Nearly a decade ago, then Congressman Gerald Solomon (R-N.Y.) introduced legislation that restricted the provision of federal funds to institutions of higher education that prohibit or effectively prevent recruiters from the nation's military services from having equal access to students for the purposes of military recruiting. As amended, the law currently proscribes disbursements to all parts of a university if any of its component parts, such as its law school, attempt to obstruct military recruitment efforts.

A legal action was filed by various law schools, law professors, and law students who oppose current federal laws and policies regarding military service and homosexuals. This enlightened conglomerate determined that the best course of action was simply to ban military recruiters from their campuses. That being said, however, the law schools were far from enthusiastic about giving up the billions of dollars in public funds that they receive from Congress each year. Instead, they put forth the inherently hypocritical notion that while taking the government's money, they retain the right to spite the government's recruiters. How benevolent of them. They argue that while Congress may control the nation's purse strings, it remains constitutionally impermissible to force military recruiting upon campuses that do not desire it. They claim that the government's position is tantamount to "forced expression" or "compelled speech."

After initial defeat at the District Court level -- which ruled that the Solomon Amendment (as it has come to be known) did not violate the First Amendment -- its opponents appealed to the United States Court of Appeals for the Third Circuit. On November 29, 2004, a three-judge panel of that court found that "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."

E. Joshua Rosenkrantz, lead counsel for the appellants, was elated by the outcome. "Now every academic institution in the country is free to follow their consciences and their nondiscrimination policies." He went on to say that "Enlightened institutions have a First Amendment right to exclude bigots. In a free society, the government cannot co-opt private institutions to issue the government's message."

This, of course, begs the question of why these "enlightened institutions" would even want to accept federal funds from such an inherently bigoted source. Given that Congress is charged with supporting the military and creating the policies governing who may serve among its members, perhaps these "enlightened institutions" would do better to forego all federal funding and demonstrate their support for homosexual students and faculty. In a quite literal sense, shouldn't these academic institutions "put their money where their mouth is?" I would not hold my breath.

IN RENDERING ITS DECISION, the Third Circuit Court of Appeals has demonstrated an inherent misunderstanding of First Amendment jurisprudence. As the government notes in its Appellee brief:

"The military policies of the United States, including its policies regarding military service by homosexuals, are legitimate subjects of public debate, and a law that sought to prohibit anyone from expressing contrary views on those policies would unquestionably run afoul of the First Amendment. The Solomon Amendment, however, is not such a law. It conditions federal funding not on what an educational institution says, but rather what it does."

The Solomon Amendment does not seek to penalize academic institutions for their criticism of military policies. Universities and their faculties retain the right to express whatever views they have about military policy without jeopardizing federal funding. Their funding is jeopardized only when academic institutions implement policies stifling the equal access of military recruiters to students.

The dissenting judge in this case, Ruggero J. Aldisert, appointed to the Third Circuit by President Lyndon B. Johnson no less, characterized the decision as misguided. He concurred with the district court's analysis that the Solomon Amendment did not impermissibly burden any of the three First Amendment issues that were asserted by the plaintiffs -- freedom of speech, freedom of expressive association, or academic freedom. He agreed that the conditions placed upon federal funding were in no way unconstitutional, but were entirely consistent with Congress's use of the spending power and fulfillment of the requirements to maintain the military under Articles I and II of the Constitution.

More importantly, Judge Aldisert applies the correct balance-of-interests test in explaining 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 rights." He argued that the relevant provisions of the Solomon Amendment govern conduct and had only an incidental effect on speech.

"Significantly," Judge Aldisert wrote, "my research has not discovered any reported case where an act of Congress exclusively predicated on supporting the military has been declared unconstitutional by application of the seminal doctrine that '[the government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests -- especially, his interest in freedom of speech."

"What disturbs me personally and as a judge," he said, "is that the law schools seem to approach this question as an academic exercise, a question on a constitutional law examination or a moot court topic, with no thought of the effect of their action on the supply of military lawyers and military judges."

A REVIEW OF THE Congressional Record indicates that Congress understood the subversive efforts and attitudes of certain academic institutions and clearly had a compelling government interest in passing this legislation. Rep. Solomon urged passage of his amendment "on behalf of military preparedness" because "recruiting is the key to an all-volunteer military." He argued that it was hypocritical for schools to receive federal money while at the same time denying military access to their campuses. "Tell recipients of Federal money at colleges and universities that if you do not like the Armed Forces, that is fine. That is your First Amendment right. But do not expect Federal dollars to support your interference with our military recruiters."

Rep. Richard Pombo (R-Calif.), a co-sponsor of the legislation, framed the argument quite well when he said that Congress needed to target "policies of ambivalence or hostility to our Nation's armed services" that are "nothing less than a backhanded slap at the honor and dignity of service in our Nation's Armed Forces." He appropriately urged his colleagues to "send a message over the wall of the ivory tower of higher education" that colleges' and universities' "starry-eyed idealism comes with a price. If they are too good -- or too righteous -- to treat our Nation's military with the respect it deserves, then they may also be too good to receive the generous level of taxpayer dollars presently enjoyed by many institutions of higher education in America."

Sadly, when our top undergraduate and law schools prohibit access to military recruiters, they are acting in a manner antithetical to both the interest of the country and the notion of diversity. At the practical level, this exclusion has created an arena of double standards, of arbitrary, partisan enforcement, and the raw use of power to enforce a purely political agenda. The military's policy on homosexuality will not change merely because academic institutions seek to suppress the presence of military recruiters. In seeking to "ameliorate" the military's recruitment policies, these academic institutions have exposed themselves as the real bigots.

Academia should be a place, as Dr. Alan Charles Kors of the University of Pennsylvania notes, where individuals are granted the dignity and strength of meeting speech or ideas that they abhor with further speech or alternative ideas, with reason, with evidence, with cold contempt, or with moral outrage or moral witness. It should not be a place where prospective employers are banned merely because their recruitment policies do not measure up to the politically correct notions of the day.

WINSTON CHURCHILL WARNED his country in 1933 that England's "worst difficulties…come from a peculiar type of brainy people always found in our country, who, if they add something to its culture, take much from its strength." Churchill, of course, was trying to stop the rise of Hitler while Britain's intellectuals were busy casting the country into "a mood of unwarrantable self abasement."

As a recent law school graduate who is currently serving as an officer in the Judge Advocate General Corps, I witnessed first hand the cold contempt with which military members and officials are treated by academics. Prior to the enforcement of the Solomon Amendment, no information was made available at my law school regarding the opportunities of military service and certainly no recruitment efforts were allowed. These policies were altered only when federal funding was threatened.

Today the United States carries on its efforts against the global terrorist threat while the occupants of the ivory tower seek to deny the military the indispensable resources of the respective student bodies. The Third Circuit Court of Appeals was legally and morally wrong to assist them in perpetuating this true discrimination.

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About the Author

Jeremie Arthur is a 2003 graduate of the Western New England College School of Law currently serving in the Judge Advocate General Corps.