Law schools to fight amendment

Aidan M. Anderson

Law faculty members from the University are supporting a consortium of legal scholars heading to the nation’s Capitol in December to contend the constitutionality of a military recruitment law.

The Solomon Amendment of 1996 stipulates that universities receiving federal funding must allow military recruiters the same access to students as any other career counselor or prospective employer, or risk losing funding.

The Law School’s faculty, along with others in the Forum for Academic Institutional Rights, contends that the military’s ban on gays serving openly violates the First Amendment rights of universities.

In 2004, the University received $351 million for research from the federal government, according to the office for the University’s vice president for research.

Some law schools, like Harvard’s, banned campus recruiting altogether for a short time, but when faced with a $400 million funding loss, decided to allow the recruiting to resume, according to a September Yale Times report.

The University complies with the amendment, but the law school’s faculty members disagree with the amendment’s discriminatory stance, said Dale Carpenter, law professor.

“This discriminating employer wants the same access to students that nondiscriminating employers get,” he said.

While the Law School faculty members agree with the consortium, it will not join in the litigation headed for the Supreme Court in December.

The wars in Iraq and Afghanistan might have heightened the visibility of the issue, but views of the amendment’s relationship with the conflict vary.

“In my view, that’s a red herring,” Carpenter said. “This is an ideological hostility on the part of Congress toward universities that want to protect gay people from discrimination.”

Mike Grewe, co-chairperson for the Queer Student Cultural Center at the University, lauded the law school faculty members’ opposition to the amendment.

“I think it’s great that the faculty is taking a stand,” Grewe said. “They’re taking a stand against what we see as a basic violation of human rights.”

For those who support the amendment, the war has made this a more urgent, emotional issue, said Vincent Thomas, assistant dean of students at Hamline University School of Law in St. Paul.

“The war has given them more facts to use in their argument,” he said.

The Hamline School of Law faculty members have not formally joined the Forum for Academic Institutional Rights consortium. The decision was not based on disagreement with the consortium’s goals, but rather a willingness to allow larger players to lead the way, Thomas said.

“Our best thinking for Hamline is to be in that group that is supportive, but to be watching and waiting, and hoping for a favorable outcome,” he said.

The decision to challenge the amendment would have come regardless of the Iraq war, because the opposition is based on civil rights and not on defense requirements, Thomas said.

“The money involved gives the government all the leverage it needs to get schools to do what they otherwise would not do, which is set aside their own anti-discrimination policies and say, “in this instance we’re going to make an exception for the federal government,’ ” he said.

“As an observer, I’m fascinated to watch to see what the Supreme Court has to say to the issue,” Thomas said.

Carpenter said, “Our opposition has nothing to do with the war in Iraq or the current administration. It has nothing to do with opposition to the military; it hurts the military and hurts national security.”

As for the viability as a First Amendment case, Mark Anfinson, a First Amendment expert and The Minnesota Daily’s attorney, said those opposed to the Solomon Amendment might have a foothold, but the lack of Supreme Court precedent could hurt their argument.

“One a scale of 1 to 10, I’d give this one below a 5,” he said.