Third Circuit Strikes Down Solomon Amendment
I have not yet gotten a copy of the holding to assess the decision fully, but I must admit surprise that the Third Circuit has struck down the Solomon Amendment:
A federal appeals court barred the government Monday from blocking funds to colleges and universities that deny access to military recruiters because of the Pentagon's policy banning openly gay men and women.
In a 2-1 ruling, a three-judge panel of the 3rd U.S. Circuit Court of Appeals in Philadelphia, Pennsylvania, said a 10-year-old federal law that allows the government to block such funds violates the schools' First Amendment right to prohibit on-campus recruiting in response to the Pentagon policy.
The Justice Department promptly criticized the ruling, but it did not immediately announce plans to appeal.
The case challenging the law known as the Solomon Amendment was brought by more than a dozen law schools but applies to all institutions of higher learning.
First Amendment law is such a mess that I'm not sure it is possible to claim this case had to come out one way or the other. I can say that I have long held, and still hold, a hostility towards the law schools themselves for using their anti-discrimination policy in this way. It is the same argument which forced my Harvard colleagues and I to attend ROTC at MIT, rather than our alma mater. As I've said before:
I would like to register my continued discontent with the hypocritical policy of these schools that desire to take the federal government's money but refuse to allow its military recruiters on campus. If a university wants to take a principled stand and refuse these recruiters, let them bear the consequences of the action. But to want it both ways, to be able to exclude the recruiters, put up roadblocks preventing students from seeking military service, all while taking money from the same Congress responsible for "Don't Ask, Don't Tell"? That I cannot accept.
I am not an advocate for exclusion of gays. Were I a congressman, I would vote for full inclusion. If I were a general on the Joint Chiefs of Staff, I would urge the same. But I cannot support the policies of universities that place the entire cost of the policy on the students who are interested in serving their country by becoming officers in the military.