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Protecting the Right to Protest Discrimination:
Law Schools Sue the Defense Department


Wednesday, Sep. 24, 2003

On September 19, several organizations of law schools, professors, and students brought a suit against the Defense Department and other federal agencies. The plaintiffs are seeking to enjoin enforcement of the Solomon Amendment, a Congressional enactment that has been modified a number of times.

Under the current version of the Amendment, if a law school denies access to military recruiters, the school jeopardizes federal funding on a university-wide basis.

Why Law Schools Feel They Must Obstruct On-Campus Military Recruitment

According to the complaint filed in the suit, every accredited law school in the country currently has in place a policy that prohibits discrimination on the basis of sexual orientation. In addition to extending equal opportunities to gay and lesbian applicants for admission and for employment, law schools with such a policy also refuse to permit employers who discriminate to recruit on campus (or if they allow them onto campus, they set them apart from equal-opportunity employers).

Consider the following illustration. If the law firm of Bert and Ernie (B&E) only hires heterosexual attorneys, accredited law schools will either refuse to admit B&E onto campus for recruitment or will only allow it to recruit under circumstances that set B&E apart from employers who refrain from such discrimination.

By engaging in this sort of limited boycott of discriminators, law schools demonstrate their commitment to the principles of equality that they embrace as part of their educational and ethical mission. To invite discriminators onto campus to recruit in their discriminatory fashion, in the view of many, is to participate in the invidious behavior in which such employers engage.

The United States Military openly practices sexual orientation discrimination. It has what is called a "Don't Ask, Don't Tell" policy, which requires gay men and lesbians who wish to join the military (in any capacity) to keep their sexual orientation a secret and to avoid in any way communicating the truth about their identity to others. Heterosexuals, by contrast, may join the military without undertaking any similar vow of silence.

A straight man in the military therefore may talk with others about his wife and how much he misses her and the children they have together. He may also, if he wishes, go into explicit details about his sex life with her. Other heterosexuals may join in the discussion and talk about what they miss most about being far away from their loved ones.

When it is the gay man's turn to speak, however, he may not say anything about the man who could be the most important person in his life, even just to say that he misses talking with him over breakfast. In fact, because others have made sexual disclosures, the gay man may feel compelled to concoct stories of his own about women with whom he has purportedly cavorted.

As it turns out, then, "don't tell" can easily become "tell a lie," and the closet thereby becomes a permanent, shameful fixture of an institution that asks people to fight and die for their country.

The First Amendment Right to Express Opposition to Discrimination

To take a stand against this counterproductive, ugly, and continuing form of official discrimination, many law schools would like to (and used to) refuse access to military recruiters who wish to interview law students for positions within the armed forces, such as the Judge Advocate General's Corps. Congress passed the Solomon Amendment to put a stop to this form of protest.

Following the Amendment's enactment and subsequent modification, law schools could no longer enforce their anti-discrimination policies without risking a punitive loss of federal funding, funding having nothing to do with the military. According to the complaint filed before District Judge John C. Lifland on Friday, moreover, all law schools whose institutions receive federal funding have given in to the military's demands, because they cannot afford to forfeit the funding.

The plaintiffs in the suit argue that the Solomon Amendment violates the First Amendment by threatening financial penalties against universities for exercising academic freedom and by thereby effectively silencing a protest against invidious discrimination. The fact that so many schools that would (and do) otherwise enforce their policies have caved in response to the Solomon Amendment makes the power of government coercion here quite clear.

Why the "Government May Fund as It Sees Fit" Argument Doesn't Work Here

Some defenders of the government in this conflict have argued that the United States has the right to spend its money as it sees fit, and if a university expresses hostility to the U.S. military, then the U.S. has no obligation to continue funding the institution. And some Supreme Court precedents support this conclusion.

The problem with relying on the argument in this context is that the U.S. government funds universities as places for lively debate, dialogue and expression of views. A university is not a government-owned subsidiary that must express or follow a party line or risk forfeiting it ability to survive. To the extent that the government dictates university policy - through threatened financial forfeitures - the government alters an essential element of what makes a university a center of freedom.

In the 2001 case of Legal Services Corp. v. Velazquez, the U.S. Supreme Court considered a similar set of issues. The federal government had there imposed a limit on the arguments that federally funded legal services attorneys could make on behalf of their indigent welfare clients, specifying that legal services lawyers could not seek to amend or otherwise challenge existing welfare law.

In an opinion by Justice Anthony M. Kennedy, the Supreme Court struck down the policy under the First Amendment. When funding a legal services corporation for indigent clients, the Court explained, the government provides support to an entity whose commitments and strategic choices must be on behalf of their clients' needs, not the government's desires.

Though legal services are provided by government money, in other words, the money may not be conditioned on gag orders with respect to some portion of the range of legitimate legal arguments. Such gag orders frustrate the expressive mission of the legal services corporation.

In the context of legal services, the Court said, "the government does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers." Viewpoint-based funding is permissible, by contrast, when the government itself is the speaker.

The Conflict Between the Solomon Amendment and the University's Mission

A university too has a mission that distinguishes it philosophically from government offices and agencies. The University is ideally a place that nurtures the free and open exchange of ideas in an environment of tolerance and accommodation for those who are different from others in how they think, speak or live. Criticizing the government is a crucial piece of what happens in the University, and it would be Orwellian to describe subsidies to universities as part of transmitting a government message.

Indeed, the Supreme Court appears to have recognized this point, albeit in an aside. In the 1990 case of Rust v. Sullivan, the Court upheld restrictions on federally funded doctors' ability to discuss abortion with their patients. In doing so, however, the Court expressly disavowed the implication that state-funded universities could likewise be treated as mouthpieces of the government.

Chief Justice Rehnquist said in Rust that "[t]his [decision regarding funding and abortion counseling] is not to suggest that funding by the Government . . . is invariably sufficient to justify government control over the content of expression." Elaborating among the examples, Rehnquist continued, "we have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by" a number of First Amendment doctrines.

Many law schools in this country view the military's "Don't Ask, Don't Tell" policy as antithetical to their mission, both because the policy discriminates against, and thereby fosters intolerance toward, gay men and lesbians, and because it imposes a gag order that forces a whole group of people to closet their identities for the sake of homophobic sensibilities. To invite military recruiters onto campus, in the face of such behavior, is to be complicit in the misconduct, because the recruiters will practice the very policy to which the schools object on campus, as they select attorneys for employment.

The Solomon Amendment represents a bullying tactic that forces law schools and universities to participate in behavior that they condemn in principle and in practice. It punishes universities for doing exactly what they are supposed to do - questioning the status quo and standing up for a free and open dialogue.

As with the Public Defender's office, the government must not be allowed to dictate the choices of universities. Such dictation threatens one of the foundations of democracy - an education that freely criticizes and challenges the governing powers. Like legal service attorneys funded by the government, a university must be allowed to put the government to the test.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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