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Supreme Court to Hear Case on Military Recruiters' Access to Colleges

By Jim Garamone
American Forces Press Service

WASHINGTON, Oct. 17, 2005 – A case concerning colleges' right to receive federal funding but bar military recruiters from campuses because of disagreements over homosexual policy is scheduled to be argued before the Supreme Court this session.

The 1996 "Solomon Amendment" provides for the government to deny federal funding to institutions of higher learning if they prevent ROTC or military recruitment on campus. In December, the court will hear a case arguing that the law impinges on the free speech rights of colleges and law schools.

"The Solomon Amendment establishes that for military recruiting, which is an important public function, to be done, the schools have to provide (the Defense Department) at least the level of cooperation that they give to other employers," said Bill Carr, the deputy undersecretary of defense for military personnel policy. "That's a reasonable quid pro quo, and federal funding being contingent on that seems reasonable, as well."

At the heart of the controversy is the military's "don't ask, don't tell" homosexual-conduct statute. The military's policy prohibits homosexual conduct and forbids servicemembers from revealing homosexual orientation. The policy also forbids commanders from asking servicemembers about their sexual orientation.

However, many institutions of higher education forbid discrimination based on sexual preference. They look at U.S. laws governing the military's homosexual policy as discrimination.

Before New York Rep. Gerald Solomon introduced his legislation in 1994, a total of 12 colleges and law schools had banned military recruiters from their campuses, officials said, and others threatened to do the same.

Solomon argued that it was hypocritical of colleges to accept federal money on one hand and deny the federal government access on the other.

In November 2004, the Court of Appeals for the 3rd Circuit ruled against DoD in a case brought by the Forum for Academic and Institutional Rights. The group, an association of law schools and law faculty, asked the court to enjoin enforcement of the Solomon Amendment because it abridged free speech. The court agreed, but halted enjoinment pending the government's appeal.

Without the Solomon Amendment, officials fear colleges would "find ways to make military recruiting just hard," Carr said in an interview. In the past, recruiters and commissioned officers had to run "gauntlets" of protesters to get to interview rooms, he said. That behavior "has a chilling effect on recruiting and, in turn, drives up recruiting costs," Carr said. "It makes recruiting harder, and recruiting is hard enough."

Carr said the military is following the law of the land. The don't ask, don't tell law "is a choice "the nation has made about its military," he said. "And if the nation has asked that of the military and the military complies with it, then it is incongruous for the military to be punished for following the statutes."

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