Schools fighting rights

Posted: Feb 05, 2005 12:00 AM

Attention Harvard Law students: The U.S. Army wants you. Oh, and your counterparts at Yale, New York University and other leading law schools. Sadly, your professors don?t want you to know that.

Here?s the background. In 1997, Congress overwhelmingly passed the Solomon-Pombo Amendment, which withholds federal funding from institutions that won?t allow military recruiters the same access to students that private recruiters enjoy.

That makes sense. There?s no reason for the government to provide research grants or other funding to universities if the schools prevent the government from having the same access to students that representatives from Microsoft or IBM have.

But our top law schools don?t see it that way. Twenty-six of them formed the ?Forum for Academic and Institutional Rights? and sued the government, claiming the amendment violates their First Amendment rights.

The schools object to the military?s policy that bans openly homosexual people from serving. They claim the military is discriminatory and that they need to ban discriminatory groups from campus. If they?re not allowed to do so, well, the schools say that?s a violation of their right to free speech.

Think about that -- the schools believe that, unless they?re allowed to bar the speech of military recruiters, their own right to free speech has been violated.

A U.S. district court waved aside the suit in 2003, noting,

The Solomon Amendment does not unconstitutionally infringe Plaintiff?s free speech and associational rights. Even when considered against the background of academic freedom, the alleged intrusion on Plaintiff?s speech and associational rights fall short of a constitutional violation.

The schools, unfortunately, were undeterred. They appealed to the Third U.S. Circuit Court of Appeals, which reversed the lower court. By a 2-1 decision, that court ruled that the amendment is a violation of the schools? free speech. ?Mere incantation [by the government] of a need for legal talent cannot override a clear First Amendment impairment,? the court wrote.

This is ironic, because the government?s policy isn?t about restricting speech; it?s about encouraging it. It?s the schools themselves that are attempting to shut people up. As the NYU student newspaper put it in a Feb. 3 editorial, ?Our university made it clear that we do not want recruiters here when we won a lawsuit in district court barring them from campus.?

That sentiment is surely the minority view. For example, in Congress the Solomon amendment is so popular that just this week, the House of Representatives passed a non-binding resolution in favor of it by a vote of 327-84.

Most of us would surely argue that military recruiters should be allowed to speak to students and make their case. If the students don?t like that message, fine. They?re certainly free to protest against the recruiters. They could carry signs, march, wear little ribbons in their hair.

Great. That?s free speech.

On the other hand, if the students want to see real examples of free speech being restricted, all they need to do is look around. Harvard?s president dares to opine that men and women might have some -- well -- different abilities. Big mistake. He?s not allowed to say that. Lawrence Summers has apologized repeatedly and will probably do so again.

 It?s critical that we allow recruiters on campus because, even though some students may not want to hear from the military, the military needs them.

For example, it?s safe to assume that most law students were appalled by the abu Gharib prison scandal. Well, who?s going to prosecute the handful of soldiers accused of wrongdoing? Even better, who?s going to defend them? Military lawyers. And as long as our troops are in the field, we?ll see a growing need for highly qualified military lawyers.

 This case is far from over. The Third Circuit has put a stay on its ruling, and the government?s solicitor general is taking this case to the highest court in the country. Legal experts expect the Supreme Court will decide this in the near future. When it does, the justices ought to allow the Solomon Amendment to stand.

 In recent months we?ve watched people line up and risk life and limb to vote in Iraq and Afghanistan. These advances came about because of the United States military, and prove the benefits of freedom.

 Our men and women are fighting, and dying, overseas. Let?s make sure they at least have the right to be heard on campus here at home.