The relevant piece of legislation is the Solomon Amendment, which holds that if any "subelement" (e.g. a law school) of a college or university denies military recruiters access to its campus, the entire institution loses federal funding from the Departments of Defense, Health and Human Services, Education and Labor and Transportation. This version of the Solomon Amendment is much more punitive and wide-reaching than the original text of the amendment, which legislated that if a given subelement of an institution refused to grant military recruiters access to its campus, only that particular subelement lost funding, and from only one department: the Department of Defense.
Thus, just as the Bush administration has restricted the rights of individuals, it has also acquiesced in Congress's reduction of the rights of colleges and universities: Congress has amended the Solomon Amendment twice in Bush's five years, expanding the breadth of the amendment on both occasions. Consequently, academic institutions have filed a series of lawsuits against the government.
The case has made it all the way to the United States Supreme Court, which will shortly hand down its ruling in a case that involves the First Amendment, gay rights, the military and college campuses across the nation.
The case, Rumsfeld v. FAIR, was initially brought by the Forum for Academic and Institutional Rights (FAIR), which comprises 35 law schools and law faculties across the nation. FAIR brought the case because of their belief that the military's "Don't Ask, Don't Tell" policy regarding homosexuals is inherently discriminatory, and these 35 law schools (in addition to thousands of other academic institutions) abide by strict non-discriminatory policies.
In fact, the American Association of Law Schools voted unanimously to withhold their schools' "Career Services facilities … from any employers who discriminate on the grounds of race, color, religion, national origin, sex, handicap or disability, age or sexual orientation." Thus, these institutions maintain that it is against both their principles and their stated policy to offer their career services facilities to the military, which refuses to employ openly gay, lesbian or bisexual individuals.
The schools are nevertheless in a difficult position because federal funding-such as research grants to professors-is crucial in order to attract and maintain a strong faculty, and thereby attract talented, highly motivated students. Consequently, many colleges and universities have violated their own policies and allowed military recruiters on their campuses.
On the other hand, the government maintains that after doling out $35 billion annually to colleges and universities (not including student aid money), it is not unconstitutional to demand military recruiters' access to students at institutions that the government is subsidizing. The government's lawyer commented, "if institutions do not wish to associate with military recruiters, they may decline to associate with the federal funding."
In order to receive federal funding, however, the government has enforced a stipulation: The military must be granted access to the given institution's students. In addition, the access that the college or university provides the military recruiters must be equal-in terms of assistance and support-to that which is accorded nondiscriminatory employers. The government claims that access to students is crucial, especially during wartime in which the military is already experiencing severe recruiting shortfalls.
When the Supreme Court hands down its decision in this case, any ruling that upholds the amendment would be unfortunate because the Solomon Amendment, in its present form, is too far-reaching. In its original form, the Solomon Amendment was sensible from a policy perspective: If an institution's law school disapproved of the military's discriminatory practices, that institution's law school could forfeit funding from one governmental department, the Department of Defense. It is the law school's First Amendment right to decide whether or not to receive governmental funds, and it is, in turn, the federal government's right to place a reasonable stipulation on the receipt of such funds.
The present form of the Solomon Amendment is, however, unconstitutional. As Kathleen Sullivan, the former dean of Stanford Law School, said, "Government can't give you a little bit of money and then tell the whole university how to run. Government can't have that much leverage."
I agree with Ms. Sullivan's statement, but would add that there is, however, a degree to which the government can in fact provide "grants with conditions." Nonetheless, the government oversteps this boundary when it cuts off an entire college or university and its endeavors across a wide range of disciplines because a relatively small number of professors in a wholly unrelated field disagree with the military's policy.
One might pose the question, "Why should a biology professor performing stem-cell research lose his or her federal grant because of a decision made by law professors?" Stem-cell research is entirely distinct from law professors' theories, and society must not be denied the benefits of such research because the government disagrees with our nation's leading Constitutional scholars.
Thus, if I were in the position to change how colleges and universities across the nation handle the Solomon Amendment, I would encourage a system based upon Amherst's policy regarding the amendment. Colleges and universities that the federal government subsidizes should provide equal access to all military recruiters; for the majority of institutions, the consequences of denying access are simply too costly. However, in exchange for access to institutions' campuses, representatives of the military must be willing to hold a public meeting on each campus in order to explain why the military discriminates against openly gay individuals and to answer questions from students, faculty and administrators.
Such a system would likely attract more attention to the military's discriminatory practices than simply not allowing them onto college campuses. Furthermore, by making military recruiters explain, time after time, why the military discriminates, it seems likely that discourse about the military's "Don't Ask, Don't Tell" policy would emerge, challenging the "conventional wisdom" about gays in the military and hopefully leading to a more equitable system.
Unfortunately, however, the implementation of such a system is highly improbable because of the government's interest in the case and the Supreme Court's likelihood to support the government. Thus, Amherst's role should be to proliferate the college's policy to other universities and colleges, urging them to open their doors to the military if their recruiters are willing to defend a discriminatory policy and face an onslaught of questions that embarrasses the military more than a visit to the given college would help the recruiters.
Neff can be reached at
mneff09@amherst.edu