An unFAIR Policy

The Supreme Court ruled in favor of the military recruiters. That doesn’t mean you have to pretend to like it.

By Sam Berger, Center for American Progress
Friday March 10, 2006

The Supreme Court’s recent ruling that law schools cannot bar military recruiters from their campuses for discriminatory hiring practices was correctly decided, but that does not mean that the military’s “Don’t Ask, Don’t Tell” policy is correct as well. The unanimous decision in Rumsfeld v. FAIR (PDF) upheld the Solomon Amendment, which allows the Secretary of Defense to deny federal funding to schools that do not provide military recruiters with equal access to that of other employers; it said nothing of the military’s policy of barring homosexuals from serving their country. Still, the ruling does not preclude the military from ending a policy that weakens our national security, Congress from repealing an amendment that forces universities to choose between providing a quality education and their conscientious objection to discrimination based on sexual orientation, or schools from voicing their strong disapproval of the policy.

The legal argument of the Forum for Academic and Institutional Rights (FAIR), an association of law schools and law faculties that opposes discrimination, was narrowly focused on the issue of First Amendment rights. FAIR argued that the Solomon Amendment infringed on freedom of speech and association by compelling them to choose between enforcing their nondiscrimination policies and continuing to receive federal funding. The Solomon Amendment, however, does not compel schools to allow military recruiters on campus; as Chief Justice Roberts said during the oral arguments (PDF), “You are perfectly free [to bar military recruiters] if you don’t take the money.” Nor does the amendment suggest that the universities support the views of the recruiters on their campus; as the court said in its decision, “Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what they may say about the military’s policies.”

The Court’s ruling did not speak, as it shouldn’t have, to the moral or practical validity of the military’s policy of banning openly homosexual Americans. There is no reason that the military cannot change this discriminatory policy, which is both unnecessary and costly. The militaries of Australia , Canada , Israel and Great Britain have lifted bans on homosexuals in the military with no negative effect on performance, cohesion or recruitment, and American troops have fought alongside these militaries without any problems. In fact, the policy is hurting national security and crippling our ability to combat terrorism; according to the San Francisco Chronicle, “Since 1998, the military has discharged 20 Arabic and six Farsi translators because they are gay. About half were discharged after Sept. 11, 2001.” Also, a recent report by a commission composed of former Defense Secretary William Perry and 11 other experts found that the policy is a huge economic burden, costing taxpayers at least $364 million over its first 10 years in lost training of soldiers and officers, because well-trained servicemen and women are discharged if it is revealed that they are gay. As former Assistant Secretary of Defense and Center for American Progress Senior Fellow Larry Korb commented, “you have a policy that is costing us money, hurting readiness and is really not fulfilling any national security objective.”

The Supreme Court’s ruling does not remove Congress’ responsibility to repeal the ill-conceived Solomon Amendment. Government should not be in the business of using economic pressure to force academic institutions to violate their conscientious objection to discriminatory hiring practices. Rather than seek to punish universities for opposing discrimination, perhaps Congress could consider whether military hiring policies should be causing such a conflict at all.

The Supreme Court decision can actually function as a road map for how schools can legally express their discontent with “Don’t Ask, Don’t Tell.” The Solomon Amendment does not make federal funds contingent on what a university says about the military, but only whether it allows the military to recruit as effectively as other employers. Justice O’Connor asked, “Does the Solomon Amendment pose any restrictions on the extent to which the law schools can distance themselves from the military’s views … can they come forward with their position on this in every recruitment office without violation of the amendment?” To which the military’s lawyer, Paul Clement, responded, “Yes, they can.” Clement went on to say that the universities “could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests.” Clement even conceded that the Solomon Amendment does not preclude schools from organizing students to picket and jeer the recruiter and the applicants. Clement’s position on the government’s interpretation of the statute was that, “If the recruiting office acts in a way that ensures access, and the rest of the university engages in speech, that’s a common sense way to accommodate the interests of the military recruiters and the First Amendment.” Schools should heed these words and work with students to organize protests, teach-ins and informational sessions to clearly demonstrate their disgust at this policy.

The decision in Rumsfeld v. FAIR is an accurate application of the law, but should not be confused with approval for a backwards, costly and unnecessary military policy towards homosexuals. The decision does not relieve the military or Congress of their culpability in supporting an unjust policy, nor of their responsibility to rectify it by ending “Don’t Ask, Don’t Tell” and repealing the Solomon Amendment. Schools should use this decision to clarify how they can legally express their abhorrence for discriminatory military policies; the Supreme Court decision lends no moral or practical legitimacy to a wrong-headed policy. The government stated in one of its briefs that “Campus recruiting is a vitally important component of the military’s effort to attract our Nation’s best and brightest young people.” So is accepting all of our Nation’s best and brightest: male or female, black or white, straight or gay.

Sam Berger graduated with the class of ‘05 from Swarthmore College with a degree in philosophy. He is currently a research assistant at the Center for American Progress.