July 9, 2007

Salt in the Wounds on Solomon Law

Law schools waged a long battle against the “Solomon Amendment,” a measure enacted by Congress to withhold federal funds from institutions that limit military recruiters’ access to campuses, which many law schools have done to protest the Defense Department’s discriminatory policies toward gay people. The Supreme Court unanimously rejected the law schools’ arguments last year and said Congress was within its rights to pass the measure. Because most law schools are attached to universities receiving millions annually in federal funds, career centers that had been closed to all employers discriminating on the basis of sexual orientation have had to make an exception for military recruiters.

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But now law school groups say that the Pentagon is trying to go beyond the equal access Congress and the Supreme Court assured it on college campuses — in ways that would be unfair and disruptive to recruiting centers at law schools.

The Pentagon proposed new regulations in May to carry out the Solomon Amendment, and law school groups say that the rules would in effect require campus job centers to make sure that military recruiters received better treatment than any other recruiter. The chief objection concerns language in the regulations that would require the military’s recruiters to receive “the most favorable access” on campuses, not just equal access.

The proposed regulations footnote that phrase by noting that the Supreme Court cited language in the Solomon Amendment that requires the military to have the same access as is provided to “any other employer.” The Pentagon proposal interprets this to mean that the Solomon Amendment is violated — and federal funds are at risk — if any college policy results in “a greater level of access for other recruiters than for the military.” Hence the idea that military recruiters need to receive better treatment than anyone else.

Both the Association of American Law Schools and NALP, the Association for Legal Career Professionals (the group that represents law schools’ career centers) have filed objections with the Pentagon to the proposal, which they say represents an overreaching by the Pentagon of its rights. (Friday was the deadline to file such responses.) Both groups say that they respect the idea that the Supreme Court ruling requires equal treatment for military recruiters, but not special treatment.

The law school association noted that many law schools have certain basic rights that they give all recruiters (appropriate interview rooms, free parking, food vouchers), but then have special benefits offered to recruiters based on their records of hiring graduates of the law school or financial contributions or even when they sign up to recruit. These benefits are offered to all eligible recruiters (including the military), but under the Pentagon proposal institutions would have to give the military these rights without its recruiters having earned them.

And then there is the reality than not everything in life (including law school facilities) is equal. “Will a law school that provides an interview room of 110 square feet for a military recruiter on a particular visit be in compliance if it made an interview room equal to 120 square feet available at some point in the past for another recruiter? What if one recruiter has been given a room with two windows on a first-come, first-served basis? Will the school be out of compliance if it provides a military recruiter with a room with no windows or only one window or with smaller windows...?” the association asked.

The Association for Legal Career Professionals told the Pentagon about other scenarios it said were created by its proposed rules. For example, law schools may currently reserve some rooms for recruiters with physical disabilities — but might need to bump such a recruiter to a less accessible room so a military recruiter could be demonstrated to have the best room. In addition, many law schools group recruiting visits so that students have a focused period of time when they can compare options. So law schools might invite big firms one week, government agencies another, nonprofit groups another, and so forth. Since the military might be excluded from a week with private firms, could a law school be found in violation?

Both law school groups stressed that their members couldn’t afford to take chances with the regulations, given the potential financial calamity to any institution found in violation.

Some critics of the Solomon Amendment and the proposed regulations have raised broad concerns that go beyond recruiting. John K. Wilson, founder of the Institute for College Freedom, in an opinion piece for Inside Higher Ed that he also submitted to the Pentagon, said that the proposed rules could affect a range of policies, including the right of students to protest and academic control of students in military programs.

The American Council on Education, which frequently organizes responses to regulatory proposals on behalf of many higher education groups, did not submit comments. Nor did the American Association of University Professors, which was among the groups that opposed the Solomon Amendment. There were a handful of comments submitted by individuals, several of them professors opposed to the Solomon Amendment.

Many groups backed the Solomon Amendment in the Supreme Court deliberations, but none of them submitted comments (at least by the deadline for public posting by the Pentagon Friday — it is possible a few arrived later). Calls to several of these groups to seek their views on the regulations were not returned.

Generally, the argument put forward by defenders of the Solomon Amendment is that if the universities make the choice to take federal funds, they shouldn’t have the right to turn away military recruiters. The only commenter who wrote to the Pentagon to support the regulations made this argument, writing (anonymously): “All institutions that receive federal funding, from universities to vocational/technical schools, should offer open and unfettered access to military recruitment.”

The law school association, in its response to the Pentagon, offered a way to make the whole controversy go away and provide completely equal access without debates over the Solomon Amendment. While the Bush administration isn’t likely to embrace this approach, here it is: “The military could abandon its ‘don’t ask, don’t tell’ policy and end discrimination on the basis of sexual orientation against lesbian, gay, bisexual, and transgender servicepeople. At that point, the military could sign the same assurance of non discrimination required of other employers and receive equal access without necessity of resort to the Solomon Amendment.”

— Scott Jaschik

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