Wrangling Over Military Recruiting (Inside Higher Ed)
Another domino has fallen in the conflict between colleges and the military over gay rights. But Congress is making clear that the fight is far from over. Yale University’s law school on Tuesday became the second in recent weeks to announce that it will reinstate a policy barring recruiters from the U.S. military from its campus, because of the military’s policy of discriminating against gay people. Yale’s decision came after a federal judge on Monday declared unconstitutional a law that allowed the U.S. government to withhold certain funds from colleges that banned military recruiters.
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The day after the Third Circuit’s decision, Harvard’s law school reversed its policy to again bar military recruiters from its career placement office, though law students there can meet with military recruiters on Harvard’s main campus.
This is a decade-old controversy that shows few signs of abating. Congress first passed a law restricting the flow of Defense Department funds to colleges that refused to open their campuses to military recruiters in 1994, and later expanded it to apply to funds from other agencies. After the Defense Department stepped up its enforcement of the law in 2001, a coalition of two dozen law schools and faculty bodies sued the department, in October 2003. It was that lawsuit that the Third Circuit ruled on last fall.
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Besides Harvard and Yale, none of the other law schools that opened the door to military recruiters under the specter of the Solomon Amendment have yet reversed their policies, probably because the Third Circuit’s ruling is tenuous; the Justice Department has announced its plans to appeal that decision to the U.S. Supreme Court.
Colleges are also reading other signals. By a margin of about four to one, the House of Representatives approved a resolution Wednesday encouraging the Bush administration to go all out to ensure continued enforcement of the Solomon law. The resolution contains what can only be read as a veiled warning to colleges that Congress could find other ways to punish them if the Solomon Amendment is ultimately defeated in the courts. It includes a reminder that lawmakers have “chosen over time” to give colleges money “for a variety of government programs,” and that those funds are “not an entitlement.” And it says Congress will “explore all options necessary” to ensure that military recruiters continue to have access to college campuses, “including the powers vested in it under article I, section 9, of the Constitution”: that is, the clause under which it hands out money. Specifically, a Republican Congressman from Minnesota, John Kline, has asked members of the House Appropriations Committee not to award pork-barrel spending projects to colleges that bar military recruiters.
It’s unclear to me how, if the 3rd Circuit decision stands (I make no prediction as to what SOTUS will do, since their rulings on gay issues are incoherent), this measure would be any different. If Congress can not withhold specified funds such as scholarships and student aid from schools who bar military recruiters, it’s unclear how they could, as a matter of written policy, exclude schools from pork on similar grounds.
It’s undeniable that the military openly discriminates against homosexuals and, presumably, private institutions should be free to object to this practice by barring military recruiters and ROTC programs from their campasses. Given that the Supreme Court has upheld the statutes that require the military to ban homosexuals, it is incongrous that Congress should be required to subsidize schools that refuse to comply with the completely reasonable public policy objective of recruiting military officers. Still, that’s the state of the law in Delaware, New Jersey, Pennsylvania, and the Virgin Islands until and unless the Supreme Court says otherwise or the 3rd Circuit reconsiders.
