Campus recruiting issue heads to high court

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - In two weeks, students begin their first day of classes at Cornell Law School. But when job recruiting of Cornell students intensifies next winter and spring, will military recruiters be permitted full access to them?

If the Supreme Court upholds a ruling handed down last November by the U.S. Court of Appeals for the Third Circuit, then Cornell, Yale and other universities would be able to banish military recruiters, or restrict their access to students, as a way of expressing how deeply they oppose the law that prohibits open, practicing gays from serving in the armed forces.

A consortium of law schools and law professors filed a suit in 2003 to overturn the federal law, known as the Solomon Amendment, which says that in order to receive funding from the taxpayers, colleges and universities must grant the same access to military recruiters as they do to any other recruiters.

Named after its chief congressional sponsor, the late Rep. Gerald Solomon, R-N.Y., the law applies to all colleges and universities that receive federal funds, except those with a policy of pacifism based on religious affiliation.

The Supreme Court will hear oral arguments on Dec. 6 and decide the case sometime before the end of its term next June.

Millions in taxpayers funds at stake
Yale gets more than $350 million in taxpayer funding each year, while Cornell gets more than $400 million, about 20 percent of each school’s total annual budgets. Those universities and others stand to lose those funds if the high court upholds Solomon Amendment and if the schools restrict military recruiting.

The question, said Yale Law School Dean Harold Hongju Koh, is “whether the government may constitutionally require us, as a condition of federal funding, to promote a message of employment discrimination.”

He added that Yale “will not assist deliberate discrimination” against its gay and lesbian students.

“I think Congress should eliminate the ban on gays and lesbians serving in the military. But that is not what the suit is about,” said one of the plaintiffs seeking to bar enforcement of the Solomon Amendment, Duke Law School Prof. Erwin Chemerinsky. “It is about making sure that law schools do not provide facilities to employers who discriminate against some of our students.”

First Amendment rights violated, court says
In its ruling last November, a three-judge appeals court panel accepted the law professors’ contention that the Solomon Amendment violates their First Amendment rights by compelling them to, in effect, express agreement with the ban on gays in uniform.

In an ironic twist, Judge Thomas Ambro, ordering an injunction to block enforcement of the Solomon Amendment, relied on the Supreme Court’s 2000 decision which held that New Jersey could not force the Boy Scouts to accept a gay scoutmaster.

“Just as the Boy Scouts believed that ‘homosexual conduct is inconsistent with the Scout Oath’ …the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness,” Ambro wrote.

Ambro, appointed to the bench by President Clinton in 2000, said “openly gay persons who meet with military recruiters are told by the recruiters that they may not pursue military careers. Such speech by military recruiters is perhaps the most discordant speech the Solomon Amendment compels the law schools to accept.”

He suggested that “the Solomon Amendment, which has generated much ill will toward the military on law school campuses, actually impedes recruitment.”

In his dissenting opinion, Judge Ruggero Aldisert, who served as a Marine Corps captain in World War II and was appointed to the bench by President Johnson in 1968, criticized the notion that anyone would think that the presence of military recruiters on campus sent the message that the university condoned discrimination.

Seeing our fellow Americans in uniform, he said, does not cause a “feeling of loathing and abomination,” to the contrary, “the men and women in uniform are almost universally considered as heroes, sacrificing not only their lives and well-being, but living separate from all the comforts of stateside living.”

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