Military Recruiting on Campus

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Military Recruiting on Campus

and the Solomon Amendment

In an effort to update UCSC students, faculty, staff, and the community on the on-going debate about military recruitment on college campuses and the controversial Solomon Amendment, the Career Center has compiled the following background information and articles. The newest development occured on March 6, 2006 when the Supreme Court made the decision to uphold the amendment. We encourage you to talk to the Career Center about any questions you may have.

***New Supreme Court Ruling - Chronicle of Higher Education Article - March 6, 2006

Background Information and Articles:

NACE article with background info and legal Q&A

NACE Article about Supreme Court Ruling - May 2005

Chronicle of Higher Education Article about Supreme Court Ruling - May 2005

UCSC Policy on Speech and Advocacy (See policy 30.00)

From the Chronicle of Higher Education, March 6, 2006

U.S. Supreme Court Upholds Law Requiring Colleges to Provide Equal Access to
Military Recruiters
By KELLY FIELD
Washington

The U.S. Supreme Court ruled unanimously this morning that the federal government can withhold federal
funds from colleges that bar or restrict military recruiting on their campuses.

In a 21-page opinion written by Chief Justice John G. Roberts Jr., the court rejected arguments that colleges
have a First Amendment right to exclude recruiters whose hiring practices conflict with their own
antidiscrimination policies.

The court's ruling was a victory for the Department of Defense, which had argued that recruiting restrictions
hamper its ability to bring talented lawyers into the Judge Advocate General's Corps, which handles legal
affairs for the military.

The decision dealt a final blow to efforts by a coalition of law schools to strike down the Solomon
amendment, a decade-old law that allows the government to deny federal funds to colleges that limit
recruiting. Law schools have contended that the statute infringes on their constitutional freedoms of speech
and association by forcing them to convey the military's message and to assist an employer who
discriminates against gay men and lesbians in hiring.

The founder of the coalition, Kent Greenfield, a law professor at Boston College, said he was disappointed
at the ruling. However, he added, "we're encouraged by the fact that this is just a skirmish in a larger civilrights
battle over the rights of all our students to serve our country."

"While this may be a setback," he said, "we're confident that in the long run, we'll win that larger civilrights
struggle" over the Pentagon's "don't ask, don't tell" policy covering its treatment of gay and lesbian
members of the armed forces.

The Supreme Court's decision in the case, Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-
1152, overturned a 2004 ruling by the U.S. Court of Appeals for the Third Circuit, which found that the
military had failed to show that its recruiting needs justified the intrusion on law schools' constitutional
rights (The Chronicle, December 10, 2004). In its ruling, the appeals court cited a 2000 decision by the U.S.
Supreme Court, Boy Scouts of America v. Dale, that allowed the Boy Scouts to exclude a gay assistant
scoutmaster.

The Defense Department appealed the case to the Supreme Court last winter, and the court heard arguments
in December. During those arguments, E. Joshua Rosenkranz, a lawyer for the law-school coalition, said the
Solomon amendment imposed unconstitutional conditions on the receipt of federal funds by forcing law
schools to choose between federal aid and their constitutional rights (The Chronicle, December 16, 2005).

Paul D. Clement, the Justice Department's solicitor general, replied that the amendment's "equal access"
requirement was an ordinary contractual condition, no different than the strings routinely attached to gifts
and bequests. He noted that law schools remained free to criticize the military's policies and could even bar
recruiters from their campuses if they were willing to forgo federal funds.

In its ruling, the Supreme Court sided with the government, finding that Congress did not exceed
constitutional limits on its power when it enacted the legislation.

"The Solomon amendment neither limits what law schools may say nor requires them to say anything,"
Justice Roberts wrote for the court. "Law schools remain free under the statute to express whatever views
they may have on the military's Congressionally mandated employment policy, all the while retaining
eligibility for federal funds."

The justices voted to uphold the law by an 8-to-0 vote. Justice Samuel A. Alito Jr., who was seated as the
court's newest member only last month, did not take part in the ruling.

Dozens of groups filed briefs in the case, including the American Association of University Professors,
which argued that the law interferes with academic self-governance.

Another brief, submitted by a group of Harvard University professors, contended that the Defense
Department had misinterpreted the law to require preferential treatment for recruiters. The department's
"statutory argument," the professors said, held that the law had been written to apply "only to policies that
single out military recruiters for special disfavored treatment, not evenhanded policies that incidentally
affect the military."

The Supreme Court rejected that argument, finding that the law had been written to ensure military
recruiters the same access as employers who comply with a law school's nondiscrimination policy.

The case has attracted the attention of Congress, which passed the Solomon amendment in 1994 -- its chief
sponsor was the late Rep. Gerald B.H. Solomon of New York -- and has expanded its reach several times
since then.

Some lawmakers had worried that if the Solomon amendment had been struck down, Congress could lose
its ability to attach conditions to federal funds -- the sacred "power of the purse." One of the amendment's
original sponsors, Rep. Richard Pombo, a Republican from California, filed a brief supporting the
Pentagon's position through the Mountain States Legal Foundation.

The ruling's unanimity was one of its most remarkable feature, given that the free-speech and
nondiscrimination arguments made by the law schools were considered likely to appeal to the court's moreliberal
members. Perhaps in part, the outcome reflects the court's general deference to the military's views of
its needs, especially during a time of war.

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From the NACE Spotlight Online Newsletter May 12, 2005

U.S. Supreme Court to Consider Solomon Amendment Ruling

The U.S. Supreme Court announced last week that it will consider the issue of whether colleges and universities that bar military recruiters from their campuses can be penalized with the loss of federal funds.

The justices will review a lower-court ruling, in favor of the Forum for Academic and Institutional Rights (FAIR), that universities may bar military recruiters from their campuses without risking the loss of federal aid. FAIR is an association of 25 law schools and other groups. Arguments will be heard during the justices' next term, which begins in October.

At issue is a ruling by the U.S. Court of Appeals for the Third Circuit, in Philadelphia, which decided that educational institutions have a First Amendment right to bar military recruiters whose hiring practices discriminate against gay men and women.

That decision-which came last November-overturned a district court ruling that had upheld the Solomon Amendment, a law which allows the government to withhold federal dollars from colleges and universities that limit the activities of military recruiters.

Following the decision by the U.S. Court of Appeals for the Third Circuit, which technically affected only institutions in the Third Circuit (Delaware, New Jersey, Pennsylvania, and the Virgin Islands), only two law schools, Harvard and Yale, publicly restored their campus bans on military recruiters. Most other law schools decided to wait for more legal guidance on the issue before determining their stance.

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From the Chronicle of Higher Education, May 2005

Supreme Court Will Hear Appeal of Case Involving Campus Bans on Military Recruiters
By JEFFREY SELINGO (jeff.selingo@chronicle.com)
Washington

The U.S. Supreme Court announced this morning that it would take up the question of whether colleges that bar military recruiters from their campuses can be penalized with the loss of federal funds.

The justices agreed to hear a case that was brought by the Forum for Academic and Institutional Rights, an association of 25 law schools and several other groups.

In November the U.S. Court of Appeals for the Third Circuit, in Philadelphia, sided with the law schools in ruling that they have a First Amendment right to exclude recruiters whose hiring practices discriminate against gay men and lesbians. The decision overturned a district-court ruling that had upheld a decade-old law known as the Solomon Amendment. That law allows the government to withhold federal dollars from colleges that limit the activities of military recruiters.

Although the federal dollars at risk go to universities, law schools have been at the center of the controversy over the Solomon Amendment because their students are highly sought after for positions in the Judge Advocate General's Corps, which handles legal affairs for the military. Law schools also tend to be more emphatic about extending their antidiscrimination policies to employers recruiting on their campuses.

Even so, given the Iraq war, the presence of military recruiters on campuses has spurred protests in recent months at some institutions, including Seattle Central Community College and San Francisco State University. Officials at both colleges cited the Solomon Amendment in saying that they would continue to allow recruiters access to their campuses.

In the wake of the appeals court's decision, which technically affected only institutions in the Third Circuit -- Delaware, New Jersey, Pennsylvania, and the Virgin Islands -- only two law schools, Harvard and Yale, publicly restored their campus bans on military recruiters. Most other law schools said they would wait for more legal guidance on the issue.

In urging the Supreme Court to take the case, the law-school coalition wrote in a brief that "the Solomon Amendment forces the law school to violate its own policy and actively support military recruiters who come onto campus to engage in the very discriminatory hiring practices that the law school condemns."

But the Bush administration said in its filings to the Supreme Court that the military needed access to campuses in order to fill its legal ranks. In a legal brief, the acting solicitor general, Paul Clement, wrote that institutions are free to ban recruiters as long as they are also willing to give up federal funds.

"The Solomon Amendment reflects Congress's judgment that a crucial component of an effective military-recruitment program is equal access to college and university campuses," Mr. Clement wrote.

The case, Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-1152, will be heard in the Supreme Court term that begins in October, with a ruling expected by June 2006.

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