Washington Week: Student Voices (O)

Court upholds recruiting law
By Shreya Rao
The Chronicle (Duke)
03/07/2006

(U-WIRE) DURHAM, N.C. — The Supreme Court ruled in a 8-0 vote Monday afternoon to uphold the Solomon Amendment, which requires Duke University campuses to allow equal access to students for military recruiters.

The case, Rumsfeld v. Forum for Academic and Institutional Rights, was argued before the Supreme Court in December. Duke Law Professor Erwin Chemerinsky was a plaintiff in the case.

Chemerinsky and FAIR, backed by law schools across the nation, argued that the Solomon Amendment was unconstitutional because it violates the First Amendment rights of the freedom and association of universities that do not support the discriminatory "Don't Ask, Don't Tell" policies of the military.

Chemerinsky explained that law schools maintain an anti-discriminatory standard, one that some say contrasts with military recruitment standards. Based on this policy, campuses — including the law schools of Harvard University and Yale University — began barring recruiters from campus facilities.

The Solomon Amendment was passed in 1995 to grant military recruiters the right to recruit on such campuses. Congressional legislation in 2000 and 2002 denied federal funds to any university that barred military recruiters.

Universities retaliated by allowing recruiters on campus but not giving them equal access to that of other on-campus recruiters.

In 2005, Congress declared that access for recruiters was not sufficient and demanded that military recruiters be given access equal to that of other on-campus recruiters in order to receive funds from the federal government.

Although the Duke School of Law never adopted policies that would bar military recruiters from the campus, opposition to the Solomon Amendment was voiced through groups such as OUTLaw — a student-run organization seeking to support the rights of gays, lesbians and bisexuals on campus — and the Duke Chapter of the American Constitution Society.

Professors like Chemerinsky also opposed the amendment. Chemerinsky explained that denying campuses funding based on the Solomon Amendment is, in itself, unconstitutional.

"The government can't offer a benefit on the grounds that a person has to forego a constitutional right," Chemerinsky said in December.

Katharine Bartlett, dean of the School of Law, said the court's decision will not change students' ability to protest the Solomon Amendment. "Students will continue to express their views and we will continue to make available forums for students [to voice their opinions]," she said.

In an interview before the December hearing, Chemerinsky explained that law schools must maintain an anti-discriminatory policy. "Every aspect of our law school must be open to all of our students," he said.

"We can refuse to associate with others if we disagree with their views," Chemerinsky added, explaining the constitutional right of association.

Monday's decision by the Supreme Court is the final say on the issue.

"It's obviously disappointing for us," Chemerinsky said. "The Supreme Court had no sensitivity in understanding the law school's policy."

In the writ of certiorari — the document that delivers the opinion of the court — the justices explained that forcing the schools to open their campuses to military recruiters was not an infringement on First Amendment rights.

"Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies," Chief Justice John Roberts wrote in the Opinion of the Court.

With the Court's decision finalized, Chemerinsky said those opposing the amendment must look to the future.

"Now what is important is to have protests and to have outrage expressed," he said, noting that the new goal must be to change the "Don't Ask, Don't Tell" policy of the military and its "homophobic stereotypes."

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