SUPREME COURT RULES ON SOLOMON AMENDMENT

Academe, May/Jun 2006 by Springer, Ann

The U.S. Supreme Court ruled in March on a case involving the Solomon Amendment, a federal law requiring that colleges and universities allow the military full access to campus recruiting, even though the military does not comply with their policies against aiding any employer who discriminates on the basis of sexual orientation. The Solomon Amendment punishes institutions with a loss of federal funding if the institution, or any individual component thereof, excludes military recruiters from campus. It puts the schools and their faculty in the position of having to violate their own policies regarding discrimination on the basis of sexual orientation or risking the loss of millions of dollars in federal funding, throughout the institution.

A coalition of law schools challenged the law, arguing that the Solomon Amendment violates their First Amendment rights to academic freedom, free speech, and freedom of association. The court, however, concluded that the Solomon Amendment regulates conduct and not speech, rejecting the law schools' argument that enforcing nondiscrimination policies against recruiters is a form of expressive conduct. The court noted that law schools are free to express their disapproval of the military's policies, and concluded that forcing them to grant military recruiters equal access to students is not a restriction on speech. The court also concluded that Congress is free to impose direct requirements on law schools to accept military recruiters, and, because of that freedom, conditioning such access on receipt of federal funds is not an unconstitutional condition.

The AAUP filed an amicus brief in this case, arguing that the Solomon Amendment interferes with the First Amendment rights of individual faculty members' academic freedom and the faculty's collective role in academic governance. The brief, which is available in the Legal section of the AAUP Web site, further contends that by requiring equal, rather than adequate, access for military recruitment, the Solomon Amendment improperly discriminates based on the viewpoint of faculty. The court did not specifically address the AAUP's arguments.-A.S.