Solomon Amendment Amelioration

Every member school of the Association of American Law Schools has a non-discrimination policy that both includes a prohibition on sexual orientation discrimination and applies to employers recruiting on campus. These policies would forbid military employers from recruiting on campus because of the military's "don't ask, don't tell" rules, but under a provision of federal law known as the Solomon Amendment, schools must nonetheless permit the military to recruit on the same terms as non-discriminating employers, or risk losing millions of dollars in federal funds for themselves and the parent universities with which they are affiliated. Last year, in Rumsfeld v. FAIR, the United States Supreme Court upheld the Solomon Amendment against a challenge based on the First Amendment rights to speech and association. The Court reasoned that the presence of military recruiters on campus could not reasonably be understood to communicate a message of agreement by the schools with "don't ask, don't tell." To underscore the point, Chief Justice Roberts, speaking for a unanimous Court, made clear that "[s]tudents and faculty are free to associate to voice their disapproval of the military’s message."

Taking the Chief Justice at his word, students, faculty and administrations at law schools around the country (including Columbia, where I teach), have taken the occasion of military recruitment on campus to express their disagreement both with "don't ask, don't tell" and with the Solomon Amendment. They hold fora, publish letters, and so forth. Some students here at Columbia and, I suspect, at other law schools, have suggested that students who do seek military employment should try to arrange interviews off campus, to show respect for the school's non-discrimination policy. That is a perfectly appropriate suggestion coming from a student group, but what if it comes from a school administration or the faculty? At the urging of a colleague who feared that official discouragement of students from interviewing on campus could be construed as non-compliance with the Solomon Amendment itself, I left this suggestion out of the Columbia faculty letter that I co-wrote. However, this strikes me as far-fetched. All official events protesting military recruitment on campus can have the effect--indeed, may be intended to have the effect--of discouraging students from interviewing with the military recruiters. Official encouragement to interview off campus is just one more form of First Amendment-protected speech by the law schools.

Indeed, one would think that, in the face of the sorts of protests invited by the Supreme Court's opinion in FAIR, military recruiters would prefer to interview off campus. A straight student who wants to serve his country in the JAG Corps but disapproves of "don't ask, don't tell," or simply doesn't want to earn the ire of his classmates, might well forego the interview if it means running a gauntlet of protesters; the same student might well be willing to interview unobserved a few blocks away. Of course, that doesn't mean my colleague was wrong to worry about the way in which official discouragement of on-campus interviewing would be received by the Department of Defense or Congress. An undermanned military fighting wars in Afghanistan and Iraq that fires Arabic language translators because they are gay cannot be expected to act at all rationally when it comes to this issue.