The 1996 federal law known as the Solomon Amendment allows the government to deny federal funding to any school that does not provide "equal access" to military recruiters on its campus. The law was established to allow the military equal access to campuses and students. However, many law school campuses say the Solomon Amendment conflicts with the right to free speech. At issue is the military's controversial "don't ask, don't tell" policy, which allows gays to serve, as long as they hide their sexual orientation.
The first version of the 1994 law named after then Rep. Gerald Solomon (R-NY) offers federal funds to universities on the condition they provide military recruiters the same access to their campuses as they do for other employers. The government had granted funds to universities as long as military recruiters were allowed on campuses. However, following the terrorist attacks of September 11, 2001, the Defense Department demanded universities provide equal access to military recruiters and threatened to withhold several hundred million dollars' worth of federal funding if they failed to comply. The Supreme Court will hear the case this fall.
The Forum for Academic and Institutional Rights (FAIR), a consortium of law schools that is challenging the constitutionality of the Solomon Amendment, said it prevents schools from realizing an anti-discrimination policy because it forces them to open their campuses to military recruiters who do not accept openly gay individuals. Some of those associated with the nationwide coalition include the faculties at Georgetown University Law Center.
"Georgetown's position is that all employers who come to recruit on campus must abide by Georgetown's non-discrimination policy in employment," said Chai R. Feldblum, a law professor at Georgetown University Law School. "That includes non-discrimination based on sexual orientation—a rule the military doesn't meet. Georgetown allows the military to recruit solely because of the duress of the Solomon Amendment."
Several other law schools and law faculties nationwide share the same view. Clark Freshman, Professor of Law at the University of Miami School of Law and Visiting Professor of Law at Santa Clara University, said the University of Miami had a policy to comply only to the extent required by law.
"It made several efforts to minimize the damage, including posting signs reminding students of the school's antidiscrimination policy and stating that the military was only allowed access because of the threat of the loss of federal funds," said Freshman.
Freshman said he is personally strongly opposed to the Solomon Amendment, calling it "a horrible, coercive policy that holds student loans hostage to force schools to give up a precious First Amendment right—the right not to let discriminatory employers on their property."
Freshman pointed out three things to be considered regarding what he called the military's discriminatory policy. "First, it is shameless. No other employer would have the audacity to have an official policy of discrimination and seek to recruit at a law school campus," he said. "Second, the policy not only affects lesbians, gays, and bisexuals, the military also will not let women into certain positions."
Freshman said no normal employer would be able to recruit when there is an official policy that says some women can hold certain jobs but not others. "Third, the policy is enforced by Gestapo-like tactics," he said. "The military threatens to out soldiers accused of being lesbian, gay, or bisexual unless they name other soldiers who may be lesbian, gay, or bisexual."
Many law student organizations have been active in making their feelings known about the Solomon Amendment and military recruiters on their campuses, even if their schools have not. David Tsai, law student and member of Santa Clara University School of Law's Bisexual Gay Lesbian Advocates (BGLAD), said his organization has circulated petitions, met with the law school administration, protested on Public Interest/Public Service Day at UC-Hastings, participated in media reports, and plans to be involved with the writing of an amicus brief in support of finding the Solomon Amendment unconstitutional. Tsai said BGLAD does support the military, but is opposed to the discriminatory practices of the military.
Tsai said Santa Clara University plans to wait until the Supreme Court makes a decision on the constitutionality of the Solomon Amendment before taking a position of its own. The school has no plans to join the lawsuit currently before the Supreme Court.
"Though Santa Clara University School of Law has an anti-discriminatory policy for all employers who recruit at the Law School—requiring all employers to sign a form indicating such—Santa Clara Law currently allows the military to recruit on campus by providing them with online scheduling, rooms to conduct interviews, and tabling space to promote the military," said Tsai.
Tsai said the law school is aware of other law schools' stances on the issue, such as Harvard and Yale's decisions to disallow the military from recruiting at their law schools. "Santa Clara University School of Law is afraid of losing its federal funding and [is] waiting to see what the Supreme Court's outcome is," said Tsai.
However, Tsai noted that Santa Clara University is conscientious of lesbian gay bisexual transgender intersex questioning (LBTIQ) law student needs. "Santa Clara Law encourages employers to take advantage of the diverse student population at Santa Clara. In fact, this past spring, Santa Clara Law hosted a 'Celebrate Diversity' reception. Santa Clara Law also encourages its law students to attend national and local recruiting events geared towards hiring LGBTIQ law students," said Tsai.
Professor Chai believes it is important now more than ever that law schools and faculty take major public steps against the military's discriminatory policy. She said based on the reasoning of the Third Circuit's opinion in FAIR, she thinks "it should matter to you a whole lot that your law school be the type of community that wants to be an expressive association that stands behind its non-discrimination policy."
She said suppose the military no longer admitted people of color to the military, or no longer allowed Jews or Muslims who were open about their religion.
"Think about whether your law school community would feel that, in such a circumstance, if a military recruiter came onto your campus to interview and recruit students for jobs—but not your students of color, your Jewish students, or your Muslim students—would your law school community feel some need to say, 'We disagree with that hiring policy'?" Chai said.
Chai said law professors should ask for a faculty meeting and join FAIR as faculty. She said that on the day the military arrives on campus to recruit, faculty and/or administration should sponsor a major, public event such as a teach-in or a roundtable discussion.
"The First Amendment claim of expressive association rests on the assertion that there is an association, that there is a community that is trying to express some values," said Chai. "That community needs to be the body of the faculty—it needs to be the bones of the administration—for it to have any real weight as an expressive association."
