By Tom Curry National affairs writer
msnbc.com
updated 8/9/2005 12:47:24 PM ET 2005-08-09T16:47:24

In two weeks, students begin their first day of classes at Cornell Law School. But when job recruiting of Cornell students intensifies next winter and spring, will military recruiters be permitted full access to them?

If the Supreme Court upholds a ruling handed down last November by the U.S. Court of Appeals for the Third Circuit, then Cornell, Yale and other universities would be able to banish military recruiters, or restrict their access to students, as a way of expressing how deeply they oppose the law that prohibits open, practicing gays from serving in the armed forces.

A consortium of law schools and law professors filed a suit in 2003 to overturn the federal law, known as the Solomon Amendment, which says that in order to receive funding from the taxpayers, colleges and universities must grant the same access to military recruiters as they do to any other recruiters.

Named after its chief congressional sponsor, the late Rep. Gerald Solomon, R-N.Y., the law applies to all colleges and universities that receive federal funds, except those with a policy of pacifism based on religious affiliation.

The Supreme Court will hear oral arguments on Dec. 6 and decide the case sometime before the end of its term next June.

Millions in taxpayers funds at stake
Yale gets more than $350 million in taxpayer funding each year, while Cornell gets more than $400 million, about 20 percent of each school’s total annual budgets. Those universities and others stand to lose those funds if the high court upholds Solomon Amendment and if the schools restrict military recruiting.

The question, said Yale Law School Dean Harold Hongju Koh, is “whether the government may constitutionally require us, as a condition of federal funding, to promote a message of employment discrimination.”

He added that Yale “will not assist deliberate discrimination” against its gay and lesbian students.

“I think Congress should eliminate the ban on gays and lesbians serving in the military. But that is not what the suit is about,” said one of the plaintiffs seeking to bar enforcement of the Solomon Amendment, Duke Law School Prof. Erwin Chemerinsky. “It is about making sure that law schools do not provide facilities to employers who discriminate against some of our students.”

First Amendment rights violated, court says
In its ruling last November, a three-judge appeals court panel accepted the law professors’ contention that the Solomon Amendment violates their First Amendment rights by compelling them to, in effect, express agreement with the ban on gays in uniform.

In an ironic twist, Judge Thomas Ambro, ordering an injunction to block enforcement of the Solomon Amendment, relied on the Supreme Court’s 2000 decision which held that New Jersey could not force the Boy Scouts to accept a gay scoutmaster.

“Just as the Boy Scouts believed that ‘homosexual conduct is inconsistent with the Scout Oath’ …the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness,” Ambro wrote.

Ambro, appointed to the bench by President Clinton in 2000, said “openly gay persons who meet with military recruiters are told by the recruiters that they may not pursue military careers. Such speech by military recruiters is perhaps the most discordant speech the Solomon Amendment compels the law schools to accept.”

He suggested that “the Solomon Amendment, which has generated much ill will toward the military on law school campuses, actually impedes recruitment.”

In his dissenting opinion, Judge Ruggero Aldisert, who served as a Marine Corps captain in World War II and was appointed to the bench by President Johnson in 1968, criticized the notion that anyone would think that the presence of military recruiters on campus sent the message that the university condoned discrimination.

Seeing our fellow Americans in uniform, he said, does not cause a “feeling of loathing and abomination,” to the contrary, “the men and women in uniform are almost universally considered as heroes, sacrificing not only their lives and well-being, but living separate from all the comforts of stateside living.”

'Polluting' college students?
Describing the law school’s argument as one of “we don’t want military recruiters to pollute our students,” Aldisert added, “What disturbs me personally and as a judge is that the law schools seem to approach this question as an academic exercise… with no thought of the effect of their action on the supply of military lawyers and military judges in the operation of the Uniform Code of Military Justice.”

From the government’s point of view, a university gets federal money, and in return it must allow military recruiters full access.

It is a voluntary arrangement, said Solicitor General Paul Clement when he asked the Supreme Court to hear the case. A university could decline federal funds if it wanted to bar military recruiters.

The debate over the Solomon Amendment has roiled Ivy League campuses. A Harvard Crimson editorial last year said President Lawrence Summers’s decision to not join the suit attacking the Solomon Amendment was “shameful.”

Likewise on the Cornell campus in Ithaca, N.Y., some students were dismayed university president Jeffrey Lehman, who has since resigned, did not join the suit to strike it down.

Clashing views at Cornell
Jocelyn Getgen, a second-year Cornell law student, said, “The university should not be bullied by the U.S. government to go against its fundamental beliefs and vision as a university… as well as against basic First Amendment rights of freedom of speech so that the government can use university resources to continue to discriminate against the queer community.”

She said, “Cornell receives a lot of money from the National Institutes of Health and other government funding sources and it would be devastatingly hurt by any action to cut government funding.”

Getgen confronted an Army recruiter on the Cornell campus last spring on the gays in uniform issue.

At first expressing interest in becoming an officer in the Judge Advocate General corps in order to strike up a conversation with the officer, Getgen then asked him “as a hypothetical” what would happen “if I couldn’t comply with the ‘don’t ask, don’t tell’ policy?”

According to Getgen the officer replied, “We’d have to end the conversation right there.”

She said he seemed flustered and embarrassed about having to explain the policy.

Cornell student Jamie Weinstein who is entering his senior year this fall, wrote in a column in the campus newspaper, The Cornell Daily Sun, that it was “simply shameful” to try to restrict military recruiting on campus in a time of war.

“At the very least, I do not think the government has any fundamental obligation to give universities —especially private universities— government money,” Weinstein added in an interview with MSNBC.com. “So, setting up standards, such as allowing military recruiters on campus, seems reasonable to me.”

He added, “I do not believe that the people who are organizing the protests are primarily concerned about ‘Don’t Ask, Don’t Tell,’ but rather have a visceral dislike of the American military itself and our current foreign policy.”

Political quandary
The Supreme Court challenge to the Solomon Amendment also poses a question for members of Congress who voice support simultaneously for gay rights and for a strong military.

Do they support the Solomon Amendment and alienate gay rights advocates? Or do they oppose it, and potentially weaken the armed forces by curbing military recruiters’ ability to reach some of the best-educated students in American society?

The leading gay rights group, the Human Rights Campaign (HRC) opposes the Solomon Amendment.

On Oct. 9, 2004, by unanimous consent, the Senate agreed to the fiscal year 2005 defense spending bill, which included the Solomon Amendment.

“Unanimous consent” means there was no objection from any senator and no roll call vote. In the House, the bill passed by a vote to 359 to 14.

Three members of the Senate Armed Services Committee are potential or likely presidential contenders in 2008:

  • Sen. Evan Bayh, D–Ind., who received a 75 out of 100 rating on HRC’s annual scorecard, based on key votes in 2004.
  • Sen. Hillary Clinton, D-N.Y., who got an 88 out of 100 HRC rating.
  • Sen. John McCain, R-Ariz., with a 25 HRC rating.

By agreeing to the 2004 spending bill, Bayh, Clinton and McCain demonstrated they did not object to the Solomon Amendment.

Clinton spokeswoman Sarah Gegenheimer said, "Sen. Clinton has not taken a position on the amendment."

Bayh’s spokeswoman said he was not available for comment, as did McCain’s.

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