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SCOTUS rules colleges must allow military recruiters on campus

The Supreme Court has just ruled unanimously in the case of Rumsfeld v. Forum for Academic and Institutional Rights. At issue was the practice of some colleges banning military recruiters from their campuses because the military’s “Don’t Ask Don’t Tell” policy regarding gay soldiers violates the colleges’ non-discrimination policies. The federal government, of course, wasn’t very fond of that notion, since college kids are prime recruitment fodder, so Congress passed a law that withheld federal money to colleges that would not admit recruiters.

WASHINGTON – The Supreme Court ruled unanimously Monday that colleges that accept federal money must allow military recruiters on campus, despite university objections to the Pentagon’s “don’t ask, don’t tell” policy on gays.

Justices rejected a free-speech challenge from law school professors who claimed they should not be forced to associate with military recruiters or promote their campus appearances.

Chief Justice John Roberts wrote the unanimous decision.

Roberts, writing his third decision since joining the court, said there are other less drastic options to protest the policy.

“A military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message,” he wrote.

The federal law, known as the Solomon Amendment after its first congressional sponsor, mandates that universities give the military the same access as other recruiters or forfeit federal money.

No school that accepts federal money could possibly do without that money, so the Solomon Amendment is essentially federal blackmail — “if you want our money, you have to accept our discriminatory military recruiters”. It’s the same tactic the feds used in the late ’80s when they threatened to withhold federal highway funds from states that wouldn’t raise their drinking age to 21.

The Solomon Amendment was first passed in 1994, in response to university law schools banning military recruiters because the Defense Department’s exclusion of homosexuals violated their non-discrimination policies. FAIR [advocacy website], an association of 36 law schools and law faculties, sued US Secretary of Defense Donald Rumsfeld to prevent enforcement of the federal law.

In 1995, Congress passed the first Solomon Amendment, denying schools that barred military recruiters from campus any funds from the Department of Defense. The next year, Congress extended the law’s reach to include funds from the Departments of Education, Labor, and Health & Human Services. In 1999, legislation shepherded by Rep. Barney Frank removed financial aid funds from the federal monies potentially affected by the Solomon Amendment. Defense Department regulations proposed in 2000 and formally adopted in 2002 exponentially toughened the law by interpreting it to require revocation of federal grants to an entire university if only one of the university’s subdivisions (its law school, for example) runs afoul of the law. In 2005, Congress amended the law to explicitly state that military recruiters must be given equal access to that provided other recruiters.

So is the Supreme Court telling us that regardless of a school’s anti-discrimination policies, it has to allow entities to recruit on campus even if they have discriminatory policies? How would this case have played out if, instead of the subject being the US military, the aggreived party was the Ku Klux Klan suing to have recruitment access to college campuses? Yes, I know, it’s a bit of apples and oranges, especially since colleges aren’t receiving millions in funds from the Klan.

But the point is the same: this law forces colleges to allow discriminatory institutions to promote and recruit for themselves. “Don’t Ask Don’t Tell” is as repugnant as burning a cross on a black family’s lawn. It tells gay soldiers that who they are is unacceptable and they may only serve if they are untrue to their self. It forces gay soldiers to live a lie. It even leads to more gay bashing against suspected gay soldiers because the bashed soldier can’t report the incident without “telling”.

The Court may be correct on Constitutional grounds, but they are upholding a Constitutional law (Solomon) to enforce a horrendous policy (DADT). Someday, we will look back on that awful policy with the same disdain we reserve today for the segregated military of the pre-Truman era.

[Vigorously cross-posted at Radical Writ]

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