A federal appeals court ruled Nov. 29 that colleges and universities can ban military recruiters from campuses without fear of losing federal funding. By a 2-1 decision, the 3rd U.S. Circuit Court of Appeals in Philadelphia struck down the Solomon Amendment, a 10-year-old law that required universities to allow military recruiters on campus or suffer the consequence of forfeiting federal funding.

The appeals court’s action overturned a lower court’s ruling, and declared that schools can bar military recruiters as part of their First Amendment rights. Allowing military recruitment on college and university campuses violates nondiscrimination policies that protect students against discrimination based on sexual orientation. The military's “Don’t Ask, Don’t Tell” policy directly conflicts with these institutions’ nondiscrimination policies, many of which have included sexual orientation since the 1970s.

“If an institution or organization has strong core beliefs about discrimination against anyone, then they should have the right to bar any student, student organization or outside organization that does not conform with such beliefs and/or policies,” said Ben Gomez, San Diego American Veterans for Equal Rights (AVER) chapter president and national secretary. “The U.S. government has no room to complain about discrimination against them since they themselves placed the discriminating law [‘Don’t Ask, Don’t Tell’] barring gays and lesbians from serving their county.”

Geoffrey Kors, executive director of Equality California, issued a statement regarding the ruling and the right of colleges and universities to prohibit military recruitment on campus.

“We are grateful that the Federal Court has held that the U.S. Military, as an employer that blatantly discriminates against gay, lesbian, bisexual and transgender applicants, cannot force colleges and universities to permit recruiting on campus,” Kors’ statement read. “The 1995 Solomon Amendment unconscionably threatened critical federal funding for educational institutions that simply wanted to foster equitable and just campus environments. Receipt of federal tax dollars should not be contingent on a college’s participation in the discriminatory ban on gays serving openly in the military.”

In September 2003, a case was filed against the Department of Defense, spearheaded by the Forum for Academic and Institutional Rights (FAIR), an association of 24 law schools and law faculties that promote academic freedom and support educational institutions opposing discrimination. The Society of American Law Teachers, the Coalition for Equality, the Rutgers Gay and Lesbian Caucus and five individuals were also plaintiffs in the case.

In November 2003, a U.S. District Court refused to issue an injunction halting the Solomon Amendment. FAIR then filed an appeal and the case was argued in court on June 30, leading to the federal appeals court decision on Nov. 29 invalidating the Solomon Amendment.

Rep. Gerald Solomon, R-N.Y., who died in 2001, first proposed the Solomon Amendment in 1994 to Congress, arguing that it was hypocritical for schools to receive federal money while at the same time deny military access to campuses. The Solomon Amendment passed in 1995. Since then, Congress has expanded the law beyond the Department of Defense to include withholding funds from the Department of Transportation and the Department of Education, as well as additional funds from the Departments of Education, Labor, and Health and Human Services.

Robert Dekoven, a professor at the California School of Western Law, believes the decision is a good sign, but is cautious of an appeal.

“It’s good news, but there’s still a chance it will be reversed by a full panel of the appellate court, and there’s still a possibility it will be appealed to the U.S. Supreme Court,” said Dekoven. “The good news, however, is that Harvard Law School has barred the recruiters again in response to the decision. It will also allow other schools, like Cal Western and Thomas Jefferson [both San Diego institutions] to bar recruiters.”

Harvard Law School promptly made the decision to enforce their policy of nondiscrimination. Dean Elena Kagan released the following statement on the Harvard Law School website Dec. 1: “On the basis of yesterday’s decision by the 3rd Circuit Court of Appeals enjoining the enforcement of the Solomon Amendment, Harvard Law School will return to its prior policy on employers’ use of our Office of Career Services (OCS). This return to our prior policy will allow OCS to enforce the Law School’s policy of nondiscrimination without exception, including to the military services. I am gratified by this result, and I look forward to the time when all law students will have the opportunity to pursue any legal career they desire.”

San Diego State University has no plans to bar military recruiters in the immediate future. “We won’t be making any changes,” said Frank Neuber, SDSU’s acting director of career services. “We have never banned any legitimate recruiter or employer from recruiting on campus.”

The University of California San Diego also is not planning on making any changes. “We have always allowed government agencies, including the U.S. military, to come onto campus for recruitment purposes,” said Delores Davies, deputy director of communications for UCSD. “We don’t anticipate a change in this policy as a result of this recent ruling.”

Julie Greenberg, professor and associate dean for faculty development at the Thomas Jefferson School of Law, was pleased with the appeals court’s ruling and objects to the military’s policy regarding sexual orientation.

“I believe the military policy on sexual orientation is not wise,” she said. “A number of law schools are forced to engage in what they consider to be discriminatory practices or lose federal funding. I don’t know that the threat of the loss of federal funding is an appropriate way to handle this issue.”

Greenberg, however, does not think the ruling will be upheld at the Supreme Court, but stands by Thomas Jefferson’s anti-discrimination policy.

The Gay & Lesbian Times was unable to obtain an official statement from the U.S. Army’s Southern California recruitment public relations representative as of press time.