As American soldiers engage in war abroad, army recruiters are
waging an ideological battle at home with several of the
nation’s top law schools.
The legal wrangle, which could potentially transform Army
recruiting on college campuses nationwide, directly addresses the
conflict between the military’s need for new recruits and
universities asserting their rights to academic freedom of
expression.
The debate revolves around the 1996 Solomon Amendment, which
allows the federal government to take funding away from any
institutions of higher learning that deny military recruiters
access to their campus. The 30 law schools attempting to kick
recruiters off their campuses are taking objection to the
military’s “don’t ask, don’t tell”
policy, a restriction they characterize as discriminatory toward
gays.
The UCLA School of Law is not involved.
Some say the recruiting policy, expected to be evaluated by the
U.S. Supreme Court soon, is basically an exchange of favors ““
funding for access to campuses.
“You can certainly keep them out of your apartment, and I
can keep them out of my house, but a university is less private.
There’s so much government support and involvement that they
don’t have the same property rights,” said UCLA
political science Professor Thomas Schwartz, adding that even
private universities enjoy government support through research
grants and scholarships.
The conflict is multifaceted. One potential argument the law
schools are expected to set forth is their right of association,
which, if granted, would allow the schools to cut ties and end
association with groups that hold opposing views to their own.
But the law schools may have to jump through some hoops to prove
they are organizations with clear sets of values, which, though not
a formal prerequisite for declaring the right of association, is
one often needed to make this argument work.
“Various associations or organizations have made those
arguments before, and some have been accepted,” said UCLA law
school Professor Gia Lee, adding that social groups are most
effective in using the right of association argument.
“But they’re more likely to be accepted when
organizations are more akin to an association that has a specific
message, set of values or shared purposes.”
A similar argument was set forth when the Boy Scouts of America
successfully defended its right to deny gays leadership
positions.
However, some believe recruiters on campus don’t deter
open disagreement with military policies, and thus do not limit
academic freedom of expression.
“People at law schools who want to express themselves can
still express themselves. No one who opposes current policy is
denied his freedom of speech, press or assembly. He can still speak
out against current policies, either war policies or policies
governing gays in the military,” Schwartz said.
Another argument the schools could make revolves around the
issue of compelled speech, the notion that the presence of military
recruiters forces these schools to put out a message they otherwise
would not.
“The trouble with that argument is that it’s not at
all clear that admitting recruiters on campus is forcing the
university to take a position on the issue,” Lee said.
“People aren’t necessarily going to think this is a
message from the law school saying we approve of the
“˜don’t ask, don’t tell’ policy.”
Schwartz believes those advocating gay rights in the military
may be taking an overly narrow approach.
“If they do have a legitimate 14th Amendment
nondiscrimination complaint, then this has nothing to do with
recruitment. The government just shouldn’t be pursuing this
policy,” Schwartz said.
A lower court ruled in November that the Solomon Amendment does
violate free speech rights. The Supreme Court’s decision on
the matter has the potential to significantly alter military
recruitment practices nationwide.
“When the court takes something like this, there’s
never complete certainty,” Schwartz said.