Joseph A. Slobodzian
Knight Ridder Newspapers
In a case that pitted academic freedom against the government’s power of the purse, a divided federal appeals court in Philadelphia on Monday invalidated the 10-year-old Solomon Amendment that requires universities to give campus access to military recruiters or forfeit federal funding.
The 2-1 decision by the U.S. Court of Appeals for the Third Circuit in a suit by New Jersey law professors and students was the first to hold that the law violated universities’ free-speech rights under the First Amendment.
“This is definitely groundbreaking,””said E. Joshua Rosenkranz, a New York lawyer who argued the case on June 30 for the Forum for Academic and Institutional Rights, the Society of American Law Teachers Inc., and seven others. “This is a victory for liberty and equality, a victory for conscience over compulsion.”
“Unless this gets reversed by the Third Circuit or by the United States Supreme Court on review, I’d say this is the end of the Solomon Amendment,” said David Rudovsky, a Philadelphia civil-rights lawyer and University of Pennsylvania law professor. Last year, he filed a suit challenging the Solomon Amendment on behalf of Penn law professors and students.
Justice Department spokesman Charles Miller said lawyers were reviewing the Third Circuit opinion but had not decided whether to appeal. Many legal experts, however, say they believe an appeal is certain.
The presence of military recruiters on campus and military-funded programs such as ROTC have sparked controversy, as during the Vietnam War.
For university officials trying to comply with expanding federal civil rights and discrimination laws, the Solomon Amendment added complications – especially for those responsible for training future lawyers. The amendment was named for U.S. Rep. Gerald Solomon, the New York Republican who sponsored it and a 1982 amendment to strengthen Selective Service registration.
Professors and students interested in the legal rights of gays and lesbians objected strongly, arguing they should not countenance the campus presence of military recruiters, who bar openly homosexual individuals from the military and oust those whose sexual orientation becomes known. It was argued that nongovernment groups that discriminate would not be allowed to recruit on campus.
Since last year, when Congress began toughening the Solomon Amendment by expanding the types of federal funding at stake, four federal suits have challenged its constitutionality.
Two, by Yale University law professors and students, are pending in federal court in Connecticut; the Penn law professors’ suit is pending in Philadelphia.
It was the fourth case – filed by the Forum for Academic and Institutional Rights, the Society of American Law Teachers, the Coalition for Equality, the Rutgers Gay and Lesbian Caucus, and five individuals – that resulted in the ruling.
In the 1994 House debate on the amendment, Solomon argued that campus access by military recruiters was important for military preparedness. He said it was hypocritical for universities to accept federal money but deny military recruiters access to students.
Many colleges capitulated, and, for a time, universities with law schools found a middle ground letting military recruiters on campus even if the law schools were out of bounds. Law schools argued that they could not ethically permit an organization that discriminates – the U.S. military – because they are sworn to teach future lawyers to uphold the Constitution and the law.
That middle ground disappeared after the Sept. 11, 2001, terrorist attacks, when Defense Department officials obtained changes to the Solomon Amendment requiring university access and assistance for military recruiters equal to that granted any other career recruiter.
Sheldon E. Steinbach, general counsel for the American Council on Education, which represents 1,800 colleges and universities, said the most recent changes were worrying.
They “would have penalized an institution for the position of one of its entities who chose, on specific ethical grounds, not to allow military recruiters,” Steinbach said.
Writing for the Third Circuit majority, U.S. Circuit Judge Thomas L. Ambro said the government had failed to prove a “compelling need” to curtail universities’ First Amendment rights.
“The government has failed to proffer a shred of evidence that the Solomon Amendment materially enhances its stated goal,” Ambro wrote. “And not only might other methods of recruitment yield acceptable results, they might actually fare better than the current system.”
U.S. Circuit Judge Ruggero J. Aldisert dissented from Ambro and Judge Walter K. Stapleton, writing that the Solomon Amendment’s goal of maintaining the military does not “unreasonably burden speech.”
“The interest of protecting the national security of the United States outweighs the indirect and attenuated interest in the law schools’ speech, expressive association, and academic freedom rights,” Aldisert wrote.
(c) 2004, The Philadelphia Inquirer. https://www.philly.com/ Distributed by Knight Ridder/Tribune Information Services.