STAFF EDIT: Wrong courts, wrong time

As Yale Law School professors retire from their legal battle against the unreasonable Solomon Amendment — which mandates a spot for military recruiters on college campuses that uphold anti-discrimination policies and receive federal funding — a comment from the lead plaintiff sums up the outcome of the case: Wrong courts, wrong time.

“The judges who hold office at the moment disagree with us. We must wait for history to vindicate our position,” Yale Law School professor Robert Burt told The New York Times. The present members of the judicial system do not seem willing to make any wide-reaching decisions that may brand them with the poisonous term “activist judge” — even when the court’s opinion could prompt re-examination of outdated policies.

Law schools across the country have argued in various suits that compliance with the Solomon Amendment, which allows the Defense Department to withhold federal funding from colleges that refuse to allow military recruitment on campus, forces law schools to violate the integrity of their own anti-discrimination policies. Because the armed forces — which recruit using a “don’t ask, don’t tell” policy approved as compromise between Congress and President Bill Clinton in 1993 — discriminate against gays, law schools accommodating recruiters are forced to compromise their values. Yale Law School has had a policy on the books that prohibits recruiter discrimination on basis of sexual orientation since 1978.

Without doubt the military’s policy that silences all expression that might give away a soldier’s homosexuality is oppressive and communicates the message: There are no gays in the military. This discriminatory message is wrong. More than 11,000 members of the armed services have been discharged for being gay since 1993, according to a February 2007 ABC News report. With the nation at war and troops stretched thin, systematically asking an entire group of people to forfeit the expressive freedoms others in the military enjoy is ridiculous. If a gay person chooses to serve his or her country, but must monitor casual conversation to make sure harmless comment about a loved one isn’t heard, something is wrong with the recruiting system. This broken system should not be forced upon schools.

However, Yale Law School allowed recruiters to participate in its interview program yesterday because about $350 million in federal funds — according to the Yale Daily News — for all of the university was too much to turn down after the law school lost its bid in a U.S. appellate court. The case, which Yale law professors say is over, would face tough odds in the highest court.

The Supreme Court, in March 2006, ruled in favor of the Defense Department in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., a coalition of law schools against the implications of the Solomon Amendment. The unanimous decision overturned that of a federal appellate court that ruled the Solomon Amendment puts schools in the unconstitutional position of having to decide between federal funding and First Amendment rights of freedom to associate, or not, with groups that support the philosophy of a private organization. The court refused to interpret the law as to allow law schools to offer equal access to military and other recruiters — and enforce the same sanctions for all — believing the intent of congressional changes to Solomon were meant to perpetuate the presence of recruiters on campus, and not to hold them to the same standards of all other sectors.

Chief Justice John Roberts wrote in the court’s opinion, “It is insufficient for a law school to treat the military as it treats all other employers who violate its nondiscrimination policy. Under the statue, military recruiters must be given the same access as recruiters who comply with the policy.” In short, violators of anti-discrimination policies are protected by the Supreme Court.

It is disappointing the courts are not inclined to comment now on the real issue behind the Solomon Amendment: not only funding, but institutionalized inequality. Legislators must pick up the fight against “don’t ask, don’t tell” and create a military recruiting policy in line with that of the Western society and the anti-discrimination standards that rule all other aspects of public life. Congress should codify a ban on discrimination based upon sexual orientation, and the coercion of educational institutions that has been legitimated by the courts in recent cases should be done away with.

Law schools and students should continue to exercise the First Amendment right the Supreme Court agrees they have — to vocally protest the presence of military recruiters upholding unjust policies on campus, if not the right to prohibit that presence. Until legislators reevaluate “don’t ask, don’t tell” or redesign the Solomon Amendment to allow one school within a university to protest recruiting without jeopardizing the entire institution, schools will need to make sure the obvious conflict between anti-discrimination and military policies is known and protested.