The wisdom of Solomon

By Gerald Walpin

Wall Street Jounral, December 5, 2005

Imagine a college accepting your donation, then saying that you cannot have the same access to the school as all other alumni — but that you must continue making donations. Unbelievable? But that is what most law schools now claim: The U.S. government must continue funding universities to the tune of hundreds of millions, despite their decision to deny military recruiters the same access to students granted to all other recruiters.

On Tuesday, the Supreme Court will hear FAIR v. Rumsfeld, an appeal from a 2-1 decision by the Third Circuit Court of Appeals holding that it is unconstitutional for the federal government to condition its funding to universities on military recruiters being afforded equal access to students. The case arises out of an attack on the Solomon Amendment, enacted by Congress in 1994 and signed into law by President Clinton, which mandates that federal funds be withheld from any university in which any part (for example, a law school) denies military recruiters that access.

The Supreme Court has previously sustained the “wide latitude” that Congress has “to attach conditions on the receipt of federal assistance,” in order to further a government interest. All parties in this case agree that military recruitment is an important government interest.

Although recognizing the general right of the government to condition its funding, the Court of Appeals struck down the Solomon Amendment on the ground that it violates the universities’ academic freedom not to appear to endorse the military’s “Don’t Ask Don’t Tell” policy regarding gays in the military. This conclusion makes no sense. All that the government asks is that students who wish to hear a military recruiter’s message have the same access as students do to hear other recruiters’ messages.

The assertion that academic freedom is being violated by giving students the freedom to hear a military recruiter’s message is Orwellian. The Supreme Court has made clear that academic freedom is primarily the right of students, not the right of school administrators to limit what students can hear to what is politically correct. In Tinker v. Des Moines Independent School District, where school board sanctions against students for wearing arm bands to communicate their view on the Vietnam war were held unconstitutional, the Court said, “[I]n our system, students may not be regarded as closed-circuit recipients of only that which the [school] chooses to communicate. They may not be confined to theexpression of those sentiments which are officially approved.”

Plaintiffs in this case — an association of 38 law schools and law faculties — argue that equal access violates their free speech rights. This is baseless: Military recruiters on campus, while this lawsuit has been winding its way through the courts, have invariably been met by demonstrations in which administrators, faculty and students have openly exercised their free speech rights to oppose ilitarypolicy. In essence, the law schools claim that, because of their disagreement with a military policy, they have a right to prevent students who wish to hear from the military.

It is the antithesis of academic freedom for one group of faculty and students to prevent the communication of a message that other students wish to hear. As the Supreme Court explained inRosenberger v. Rector, “The quality and creative power of student intellectual life . . . remains a vital measure of a school’s influence and attainment. For the university . . . to cast disapproval on particular viewpoints . . . risks the suppression of free speech and creative inquiry in . . . its college and university campuses.”

Likewise, plaintiffs’ claim — that their freedom of association is violated by forcing the universities to endorse military policy, merely because the military recruiters are treated as hundreds of other recruiters — is contrary to reality. No one believes that a law school endorses any or all of the recruiters who participate in its annual employment fair. This is obvious from the fact that, for example, both pro- choice and anti-abortion legal groups can have recruiters at a law school. A law school merely acts as a clearinghouse to allow students to meet with those recruiters whose messages each student wishes to hear. Again, the Supreme Court held in Board of Education of Westside Community Schools v. Mergens that “students are mature enough and are likely to understand that a school does not endorse or support . . . speech that it merely permits on a nondiscriminatory basis.”

Plaintiffs say that law schools are only enforcing their nondiscrimination policy which they require all recruiters to endorse, swearing that they will not discriminate on the basis of various factors, including race, religion, gender and sexual orientation. On the surface, this argument sounds plausible. But unlike discrimination on the basis of race, religion and gender, which are banned in employment by the law of the land, no federal statute bans sexual orientation discrimination.

The “Don’t Ask Don’t Tell” military policy — which is the true target of the schools’ objection to military recruiters as discriminatory against gays — is the law of the land, enacted by Congress, and signed into law by President Clinton in 1993. Since then, all courts which have considered this statute have upheld its constitutionality. Thus, what the law school administrators and professors are attempting is to substitute their view of what the law should be for what Congress, the President and the courts have determined the law is. Closing campus doors to military recruiters is not the way to seek to alter the”Don’t Ask Don’t Tell” policy; lobbying Congress to change it is the proper procedure.

In the end, there is no reason to exclude military recruiters from the axiom that he who pays the piper picks the tune. The federal government has the right to condition its grant of funds to universities on the simple condition that military recruiters receive equal treatment. Both law and logic dictate that the Solomon Amendment be held constitutional.

Mr. Walpin, a director of Center For Individual Rights, has submitted an amicus brief in support of the federal government’s appeal in FAIR v. Rumsfeld on behalf of that organization, 54 law students and eight Medal Of Honor recipients.