Published in January 2006

Following oral argument on Dec. 6, the U.S. Supreme Court is now pondering the wisdom of Solomon.

The Solomon Amendment withholds federal funds from any school that does not provide the same access to military recruiters as it does to other potential employers. Law schools have rallied against the rule for violating their nondiscrimination policies as well as their constitutional rights of speech and association. In the balance are the right of Congress to condition the receipt of federal funds, the right of free speech-and literally billions of dollars that could be lost by schools unable to reconcile anti-discrimination policies with their receipt of federal money.

This case has presented a difficult question for academics who generally support gay rights. Last year, this issue was presented to my law school faculty when we were asked to join the Forum for Academic and Institutional Rights (FAIR) in challenging the rule. Twenty-six law schools have joined the coalition, though many have done so anonymously to avoid any retaliation from the government. As a legal commentator, I have long supported gay rights and opposed the ban on openly gay citizens in the military. Yet I spoke against joining FAIR. Despite my personal respect for academics on the other side of this issue, I continue to believe that schools are not just wrong on the law but hypocritical in their positions in this litigation.

The first problem with this case is the anonymity of many schools. (To its credit, George Washington University Law School joined as a named institution). Basically, these schools are asserting the principle of nondiscrimination while trying to avoid any of the costs of principle. These schools are hiding their identities not only from the government but also from their alumni. It is a disturbing lesson for their students-assuming that their students even know their position.

PRINCIPLE HAS A PRICE
If it is true that military recruiters are engaged in a discriminatory policy, then the schools should bar them from campus. Instead, schools are allowing the interviews to go forward-interviews that they have analogized to the segregationist policies of the Civil Rights period. If the Solomon Amendment is discriminatory, then schools should refuse to cooperate and accept the consequences for such a principled stand. What schools cannot do is to engage in a practice that they consider morally wrong while claiming no moral obligations to stop.

When I raised this issue in the past, I was told that schools could simply not afford such a stance. After all, the University of California alone could lose hundreds of millions of dollars in universitywide grants. Of course, this merely sharpens the age-old test of principle v. price. According to legend, Winston Churchill once asked a socialite if she would sleep with him for 1 million pounds. When she admitted that she would, he offered one pound. “Winston! What sort of woman do you think I am?,” the woman objected. He responded, “We have already established what you are, now we are just haggling over price.”

Law schools appear to be only haggling over the price of principle. Thus, we have decided to assume the appearance of principle while avoiding its costs.

There is also the question of the propriety of law schools entering this litigation as parties. There are many on faculties and within student bodies who agree with the policy and legal arguments of the military. I do not. However, there was no reason why professors have insisted on schools taking an institutional stand- rather than have professors litigate as individuals. Advocates wanted the imprimatur of law schools to support an otherwise shaky legal argument. Despite the appellate ruling in favor of the schools, Congress is on good legal ground in its position. Allowing military recruiters on campus does not force a law school to endorse the practice. Indeed, the school may warn students that the recruiter is viewed as discriminatory and practice free speech denouncing its presence.

Moreover, the Supreme Court has never held that the military policy on gays is Unconstitutional and has so far refused to give sexual orientation the same protection as race, religion, national origin or even gender. Thus, the military is not engaged in an unconstitutional act.

Finally, the fact that the military is on campus does not force students or a school to associate with anti-gay views-any more than recruiters from anti- abortion or pro-abortion-rights groups are associating their views by their mere presence on campus.

The Supreme Court will most likely uphold the Solomon Amendment. Law schools will then have to face the moral question that they sought to avoid in this case: whether to continue a practice that they consider morally and legal wrong-or just continue to haggle over price.