The standoff between military recruiters and universities that want to bar or limit their access to campus will be decided by the Supreme Court, if the Bush administration has its way.
Although the case has been framed as a free-speech test, it is also loaded with civil-rights questions and with concerns over military readiness.
At the heart of the dispute is the military’s ban on openly gay service members. “Don’t Ask, Don’t Tell” conflicts sharply with the tolerant ethos and written policies of many universities, which forbid discrimination because of sexual orientation.
Those campus policies were trumped by a decade-old law now known as the Solomon Amendment, which gives the Pentagon the authority to withhold federal funds from colleges that deny equal access to military recruiters. At the University of Pennsylvania, that could affect more than $500 million in federal funds each year.
Last fall, the law’s opponents convinced an appellate court that the amendment violated universities’ First Amendment rights. Last week, the court agreed to stay its ruling until the Justice Department can appeal it to the Supreme Court.
Students and administrators at local institutions were waiting for the court’s decision to hear the case before formally reevaluating what to do.
But even if the Solomon Amendment is ultimately deemed unconstitutional, the local schools appear unlikely to ban the military, and some will not limit military access at all.
“This is a delicate balance,” said Maura McKenna, 32, a Penn law student and co-chair of the Lambda Law chapter, which is fighting the amendment.
“If our classmates satisfy the military’s hiring criteria and want a military career, it would be just as discriminatory for us to block them from pursuing that career as it is for the military to refuse to hire LGBT (lesbian, gay, bisexual and transgender) students.”
Indeed, campus resistance to the amendment has often been largely symbolic. For instance, when Penn Law School decided that its career office shouldn’t work with military recruiters, they set up at the university’s central career office instead.
But such compromises haven’t satisfied the Pentagon.
“We should have the same access as any other employer,” said Maj. Michael Shavers, a Department of Defense spokesman. “We just want to compete on a level playing field for the talent that our nation’s universities are putting out.”
In some quarters, debate over the Solomon Amendment has become a full-fledged battle in the culture wars.
Harvard University professor Alan M. Dershowitz, for example, has labeled the law “an immoral and probably illegal extortion.” And in a letter to Attorney General John Ashcroft, four GOP senators called the lower court’s ruling “an insult to our military.”
“Veterans across the country are rightly concerned that academic and legal elites – unable to promote their hostility to the military through the democratic process – have been conducting an active and aggressive campaign in the courts to deepen the divide between military and civilian culture in our nation,” the letter read.
While the rhetoric has been cooler locally, several Penn Law School professors and students did file suit to overturn Solomon, and there have been sporadic protests there as well.
Law schools such as Penn’s and Harvard University’s have been ground zero for the Solomon fight because most reputable schools belong to the Association of American Law Schools. The group forbids members from assisting employers that do not follow the association’s nondiscrimination policies.
When Solomon made that impossible, the association’s members were told to “ameliorate any adverse effects of noncompliance with regard to the educational atmosphere for gay and lesbian students.”
While some schools responded by suing the government, Widener University in Chester, Pa., chose to post disclaimers when military recruiters came around. “Military policies are beyond the control of the School of Law,” Widener’s disclaimer reads.
At Villanova University, amelioration has meant programmed discussions on “Don’t Ask, Don’t Tell,” said Law School dean Mark A. Sargent. But the Main Line university, which boasts alumni such as retired Gen. Anthony Zinni, will continue to welcome recruiters even if Solomon is overturned, Sargent said.
At Temple University in Philadelphia, the decision is out of the law school’s hands. The university’s nondiscrimination policy makes a campuswide exception for military recruiters and the R.O.T.C. program. Changing that, said Temple Law dean Robert J. Reinstein, would require a vote by trustees.
Rutgers-Camden student Patrick Hanley predicted that, if the amendment is overturned, his “law school community will come together and decide our antidiscrimination policy is more important than allowing military recruiters to use our career center.”
There are signs that an informal consideration of new campus policy is already under way at Penn, where university president Amy Guttman had exchanged e-mails and had discussions with campus groups opposed to the amendment.
“Penn has long been committed to the principles of non-discrimination, openness, and tolerance,” she wrote in an e-mail to Jacob Press, the law school student coordinating the anti-Solomon campaign. “Since these fundamental moral values are a core commitment of this University, they will certainly inform our consideration of the issues.”
Her e-mail also said that Penn would wait for the Solomon litigation to be resolved before making any decisions.
While law school students at the University of California-Los Angeles, the College of William and Mary in Virginia, and elsewhere have filed friend-of-the-court briefs supporting Solomon, there has been no organized support for the amendment from local law schools.
Phillip Carter, a Los Angeles lawyer and Army veteran who co-wrote a pro-Solomon brief, thinks that’s a shame.
“In the long run, if they really want to change the military’s policy, they should encourage more of their graduates into the service,” Carter said. “It’s not going to be a guy from Texas A’M that does it. It’ll be Penn graduates and Harvard graduates who change that policy.”