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Wrangling Over Military Recruiting

February 3, 2005

Another domino has fallen in the conflict between colleges and the military over gay rights. But Congress is making clear that the fight is far from over.

Yale University's law school on Tuesday became the second in recent weeks to announce that it will reinstate a policy barring recruiters from the U.S. military from its campus, because of the military's policy of discriminating against gay people. Yale's decision came after a federal judge on Monday declared unconstitutional a law that allowed the U.S. government to withhold certain funds from colleges that banned military recruiters. 

The decision (available in two parts, here and here) by U.S. District Judge Janet C. Hall follows a November ruling by the U.S. Court of Appeals for the Third Circuit that upheld colleges' First Amendment right to ignore the law, commonly known as the Solomon Amendment, if permitting the military to recruit conflicted with the institutions' nondiscrimination policies.

The day after the Third Circuit's decision, Harvard's law school reversed its policy to again bar military recruiters from its career placement office, though law students there can meet with military recruiters on Harvard's main campus.

This is a decade-old controversy that shows few signs of abating. Congress first passed a law restricting the flow of Defense Department funds to colleges that refused to open their campuses to military recruiters in 1994, and later expanded it to apply to funds from other agencies. After the Defense Department stepped up its enforcement of the law in 2001, a coalition of two dozen law schools and faculty bodies sued the department, in October 2003. It was that lawsuit that the Third Circuit ruled on last fall.

Yale's law dean, Harold Hongju Koh, said in a statement Wednesday that he believed Judge Hall's ruling "brings us closer to the day when all members of our community have an equal opportunity to serve in our nation's armed forces," presumably by increasing pressure on the Defense Department to change its so-called don't ask, don't tell policy prohibiting openly gay people from serving in the military.

Some Yale law students, though, are troubled by the university's change of heart. James Blacklock, a third-year law student, interviewed two years ago to join the Judge Advocate General corps, which provides legal services in the military. He said in an  e-mail interview that while Yale officials say the new policy doesn't seek to discourage  students from pursuing careers in the military on their own, Yale's lack of cooperation will make that virtually impossible. "From what I can tell, it would be difficult to set up an interview with a JAG recruiter outside of the YLS interview programs. I can't even get one on the phone."

Blacklock also sees a subtext to the law school's fight over this issue. "It seems to be an outlet for the latent anti-military sentiment that's common to many of the folks up here," he said. "In the psyche of most politically active YLS liberals, it's just natural to demonize the military, and this can cloud any reasonable debate that might be had on the issue."

Besides Harvard and Yale, none of the other law schools that opened the door to military recruiters under the specter of the Solomon Amendment have yet reversed their policies, probably because the Third Circuit's ruling is tenuous; the Justice Department has announced its plans to appeal that decision to the U.S. Supreme Court.

Colleges are also reading other signals. By a margin of about four to one, the House of Representatives approved a resolution Wednesday encouraging the Bush administration to go all out to ensure continued enforcement of the Solomon law.

The resolution contains what can only be read as a veiled warning to colleges that Congress could find other ways to punish them if the Solomon Amendment is ultimately defeated in the courts. It includes a reminder that lawmakers have "chosen over time" to give colleges money "for a variety of government programs," and that those funds are "not an entitlement." And it says Congress will "explore all options necessary" to ensure that military recruiters continue to have access to college campuses, "including the powers vested in it under article I, section 9, of the Constitution": that is, the clause under which it hands out money.

Specifically, a Republican Congressman from Minnesota, John Kline, has asked members of the House Appropriations Committee not to award pork-barrel spending projects to colleges that bar military recruiters.

 

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