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Appeals Court Upholds Military Recruiting

September 19, 2007

The Solomon Amendment has won another round in court, and the only remaining push against it may have suffered a fatal blow this week when a federal appeals court upheld the constitutionality of the controversial measure.

Last year, the U.S. Supreme Court ruled unanimously that the Solomon Amendment did not infringe on the First Amendment rights of law schools that objected to it. The law threatens to withhold federal funds from institutions that limit military recruiters’ access to campuses, which many law schools historically have done to protest the Defense Department’s discriminatory policies toward gay people.

While Supreme Court rulings on specific laws generally settle matters, a group of Yale University faculty members had a separate challenge to the Solomon Amendment and they won in federal district court, where they focused on the First Amendment protections for academic freedom. The Pentagon appealed that ruling, but the case was on hold during the Supreme Court review. Some critics of the Solomon amendment hoped they had an argument that might work, but the U.S. Court of Appeals for the Second Circuit disagreed.

The appeals court ruled that the Supreme Court's decision last year "almost certainly" rejected the academic freedom argument put forth by the professors. And if it didn't, the appeals court found that the argument "lacks merit."

On the question of whether last year's ruling covered the academic freedom argument, the appeals court noted that -- even if not addressed explicitly in the decision -- there is evidence that the justices were aware of the argument and were not moved by it. Briefs filed in the case raised the issue, the appeals court said. And the Supreme Court decision noted attempts by critics of the Solomon Amendment "to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect."

Thus it is "much more likely than not" that the Supreme Court rejected the academic freedom argument, the appeals court said.

On the merits of the argument, the Yale professors didn't far much better. They had argued that their academic freedom was being violated when they are forced to allow discriminatory employers (in this case the military) to have access to the campus for recruiting. Allowing such discrimination, the professors said, interfered with their academic goals of having a diverse student body and promoting equal justice among their students.

But the appeals court said that these arguments went beyond the academic freedom protections that the Supreme Court has enshrined. Those protections, the appeals court said, focus on protecting "the marketplace of ideas."

Unlike the kinds of measures the Supreme Court would see as infringing on academic freedom, "the relationship between barring military recruiters and the free flow of ideas is much more attenuated," the appeals court ruled.

"The Solomon Amendment places no restriction on the content of teaching, the membership of teachers in organizations, the selection of students, or evaluation and retention of students," the appeals court said. Requiring universities to allow military recruiters on campus "may incidentally detract from the academic mission of inculcating respect for equal rights," the appeals court said. But the requirement does so "in a much less direct and more speculative way" than policies that would be barred by First Amendment protections for academic freedom, the court said.

 

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