Not Solomon's wisdom

Few Americans have heard of the Third Circuit Court of Appeals (based in Philadelphia) November 2004 ruling in FAIR v. U.S. Secretary of Defense. In a 2-1 decision, this federal appeals panel overturned the Solomon Amendment. This decision deals a crippling blow to the U.S. military, and national security, in a time of war.

In 1994, Gerald Solomon, then one of New York's Reublican congressmen, sponsored an amendment to withhold Department of Defense funding from any educational institution with a policy of preventing the military from obtaining entry to college campuses for recruitment purposes.

During the House debate on the bill, Solomon urged passage of his amendment “on behalf of military preparedness because recruiting is the key to an all volunteer army.” In addition, he argued that it was hypocritical for schools to receive federal money at the same time denying the military access to their campuses: “Tell recipients of federal money at colleges and universities that if you do not like the armed forces, if you do not like its policies, that is fine. That is your First Amendment right. But don’t expect federal dollars to support your interference with our military recruiters.”

The Solomon Amendment came in response to the American Association of Law Schools policies that withhold career placement services from employers who exclude potential employees based on race, religion, gender, and sexual orientation. The AALS contends that President Clinton’s 1993 “don’t ask-don’t tell” policy discriminates against gays and lesbians. Eighty-eight percent of America’s law schools belong to AALS. In effect, without the Solomon Amendment, the AALS could virtually ban the military from recruiting at the overwhelming majority of the nation’s law schools -- and could do so without losing federal monies.

The Third Circuit’s decision gave the law schools that victory. The majority ruling found that the Solomon Amendment violated the law schools’ First Amendment rights because it “compelled” them to aid military recruiters in disseminating their discriminatory message. What baloney!

The law is not a statutory command but merely imposes conditions on the receipt of federal money. These conditions are not unusual to beneficiaries of government largess. For instance, college students who receive federal loans accept that they can lose these benefits if they are convicted of illegal drug possession or distribution. They can continue their university studies, but without stare or federal funds. In the 1980s, the U.S. Supreme Court ruled that Bob Jones University would lose its tax-exempt status, and federal funding, if it did not rescind its strongly held religious view that interracial dating was a violation of Biblical scriptures. The university changed its policies. In the 1990s, the federal courts conditioned the continued receipt of taxpayer dollars to VMI on the condition they accept female cadets.

The Third Circuit ruling has cleverly obfuscated the distinction between constitutional rights and government-extended privileges. College students may lose their federal loans for behavior that the government deems undesirable but still retain the right of lawful association at any college that will accept them.

Bob Jones University chose to keep its First Amendment free exercise of religion ban on interracial dating and continued to operate as an institution of higher education -- but also chose not to accept federal funds. VMI alums could have bought the university from the state of Virginia, ignored federal law that prohibits discrimination based on gender, and continued to maintain an all-male policy -- but without tax dollars. Each of these entities understood that acceptance of federal cash was a conditioned privilege, not a constitutional right.

Hence, the court’s opinion reinforces the belief that gays and lesbians are seeking special or extra -- not equal -- rights under the law. This is indeed strange because the group enjoys no protected status under Title VII of the 1964 Civil Rights Act that bans discrimination based on race, religion, gender and national origin. Consequently, the classification “sexual orientation” does not have any legal standing under the law.

The law schools were never “compelled” to accept the supposedly tainted federal money. They always had the First Amendment right to simply say no to the privilege. Their acceptance of federal support clearly outweighed their commitment to perceived discrimination against gays and lesbians.

Immediately after the ruling, the Harvard University Law School boldly announced that it would ban military recruiters from its campus. Such conviction, from the nation’s wealthiest university, to this moral crusade! Like little children at a summer picnic, the law schools wanted their cake and wanted to eat it as well. The Third Circuit panel permitted this indulgence.

The judges, after equating privileges with rights, had to “make law” in this one. They concluded that the military could not show that recruiting had been harmed by the AALS policy. Yet, the military --like private law firms -- recognize that on-campus recruiting is a necessity in attracting top legal talent. Howard Basham, who filed a friend-of-the-court brief for several law-student veteran groups, noted that military lawyers fulfill a number of important legal functions:

• They advise military personnel on will preparation, bankruptcy, and family-law issues.

• They advise the military on compliance with both national and international law.

• They administer the armed forces own justice system.

• They defend enemy combatants.

Why, then, shouldn’t the military have the opportunity to recruit the “best and the brightest” from the nation’s law schools? Regardless of one’s position on “don’t ask-don’t tell,” the restriction of military recruiters from America’s college campuses is a backhanded slap to those who serve in the country’s armed forces. The men and women in our military are literally the thin green line that keeps the barbarians from storming the gates of the law school ivory tower where such starry-eyed idealism masquerades as reality.

In the final analysis, military recruiting at the nation’s law schools is a national security issue. That’s why the Third Circuit’s opinion has to be overturned. Judge Aldisent’s dissenting opinion in FAIR v. U.S. Secretary of Defense addresses this issue: “No court heretofore has ever declared unconstitutional on First Amendment grounds any congressional statute specifically designed to support the military. The intent of protecting the national security of the United States outweighs the indirect and attenuated interest of the law schools’ ‘speech.’ ”

Special rights or national security? It’s a no-brainer. It’s also why will red and blue states will remain for the foreseeable future.