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U.S. Supreme Court Will Review Law that Denies Funding to Campuses that Bar Military

The U.S. Supreme Court has agreed to consider a case that will determine whether universities can bar military recruiters from their campuses, without having to forfeit federal funding. The announcement comes at a time when some branches of the U.S. military are experiencing recruitment shortfalls, and President George W. Bush has pledged not to implement a draft.

At issue is a 1996 federal law known as the "Solomon Amendment." It allows the government to deny federal funding to any school that does not provide "equal access" to military recruiters on its campus. This applies to the Reserve Officer Training Corp, or ROTC, a military program that was kicked off many college campuses during the Vietnam War in the late 1960s. It also includes the military's Judge Advocate General, or JAG Corp, which recruits lawyers to handle cases involving military personnel.

"The statute has been especially problematic for law schools, because law schools almost uniformly have non-discrimination policies," says Kent Greenfield, who teaches at Boston College Law School and founded the Forum for Academic and Institutional Rights, a consortium of law schools that is challenging the constitutionality of the Solomon Amendment. The problem, says Professor Greenfield, is that the U.S. military bars anyone who is openly gay from serving in its forces. Most law schools do not want any institution -- public or private -- to actively recruit their students, if that institution discriminates on the basis of race, religion, sex, or sexual orientation.

"We have a first amendment claim," says Professor Greenfield. "What we're arguing is that when the military comes onto campus, and it's forcing us to use our resources to further their message, it is essentially compelling us to say something that we find completely inconsistent with our educational philosophy."

For a number of years after the passage of the Solomon Amendment, many schools simply ignored it. But following the attacks of September 11, 2001, the U.S. Department of Defense started cracking down on universities, and today, many law schools do allow JAG recruiters to speak to students, even as the schools hope the U.S. Supreme Court will rule that they do not have to.

The Department of Defense believes the schools' claim that they are being forced to say something they do not want to say is groundless, according to Lieutenant Colonel Joe Richard, a spokesperson for the DOD. "The Department of Defense believes the law meets the constitutional test, and by no stretch of the imagination violates free speech rights of any of these institutions," he says. "(The schools) are free to protest the Department of Defense policies. The issue is whether or not military recruiters are given equal access to campus facilities, as well as to students."

Lieutenant Colonel Richard says if schools really believe that allowing military recruiters onto their campuses would compromise their educational philosophies, they can turn the recruiters away, but they have to turn the federal money away, too. And they do not want to do that, according to Andrew Morriss, a professor at Case Western Reserve University's law school who says the Solomon Amendment doesn't violate the right to free speech. "What essentially is happening here," he says, "is law schools are saying 'We are not willing to bear the consequences of our choice of taking a principled stand to exclude the military, because those consequences are unattractive to us. We'd have to give up federal funding.'"

But that is simply not true, according to Kent Greenfield of the Forum for Academic and Institutional Rights. "If the government is right, then imagine the implications of that," he says. "Any person receiving any federal benefit -- any company that has a part of the broadcast spectrum, or any college student who receives a student loan, or any person receiving social security benefits -- can be forced as a condition of that benefit to give up their First Amendment right, 8th Amendment right (and other constitutional rights.)"

The debate is especially fresh on the campus of Columbia University, where the faculty senate recently voted not to allow ROTC to return to campus. In justifying his vote, Provost Alan Brinkley noted that Columbia would not allow a group on campus if it accepted only African-American members who could "pass for white." It was a reference to the military's controversial "don't ask, don't tell" policy, which allows gays to serve, so long as they hide their sexual orientation.

The vote was both a victory and a defeat for Scott Stewart, a gay student at Columbia who served in the military in the mid 1990s and was active in the effort to get ROTC back on Columbia's campus. He, too, opposes the military's policies against homosexuals, but says you have to reform things from the inside. "What I see this as is an opportunity for us, as homosexuals, or people who want to end the discrimination, to announce that we're going to sit at the front of the bus," Mr. Stewart says. "Or to announce that we're going to drink from the 'whites only' fountain. There is a civil rights issue here, and that's one of them. We have to sit down at the front of the bus."

But you cannot do that, Scott Stewart says, if the military is not able to drive its "bus" onto your campus. Whether Columbia -- or any other university -- can be forced to give military recruiters access to its student body is now up to the U.S. Supreme Court.