In a landmark case that could forever determine the level of autonomy universities enjoy in their interactions with the federal government, the U.S. Supreme Court is hearing arguments over the constitutionality of the Solomon Amendment, legislation that conditions federal funding on a university’s willingness to offer military recruiters access to its student body. Opponents claim the law infringes on the freedoms granted by the First Amendment – namely, an institution’s right to protest the military’s “don’t ask, don’t tell” policy, which prohibits the employment of openly gay military personnel. Universities should not have to choose between losing hundreds of millions of dollars and condoning active discrimination. No matter how compelling its interest, the federal government cannot put a price tag on free expression; universities deserve the right to express political opinion without fear of reprisal.
The military offers students a variety of benefits in exchange for their service, many of which appeal to students looking for a free ride to graduate school or an opportunity to pay off loans. But while these funding benefits are abundant on college campuses, the military still denies them openly gay students. It is difficult to stomach recruiters’ requests for full access when the military itself is not a fully accessible institution. At a time when the military is desperate to recruit as many qualified personnel as it can, recruiters should extend their search to all able bodies, regardless of sexual orientation.
The military itself possesses a right to advertise on college campuses, but any compelling interest the court can derive from such recruitment pales in comparison to the responsibility it has to protect the First Amendment rights of universities.
Universities can choose to exclude companies with discriminatory hiring practices from their career fairs, and they should be able to treat the military as any other graduate-seeking company. Keeping military recruiters off campus is one way universities can send a clear message that they do not support the military’s discriminatory policies. To grant recruiters a presence on campus for fear of losing funding condones the military’s active discrimination and infringes on universities’ freedom of expression.
Because of the active role the military takes in recruiting graduates that are heterosexual or appear to be so, universities’ choice to keep military recruiters off campus differs from restricting free expression on its own campus. The University, for example, has and will continue to welcome divisive demonstrators like anti-gay religious activist Fred Phelps. Such protests can be offensive, but they are visible and accessible to all students. Unlike the military’s case, the presence of Phelps and his supporters on campus in no way suggests a relationship between his cause and the University.
If the autonomy of America’s institutions of higher education is of any worth, cash-starved universities should not have to compromise their freedom of expression for desperately needed funds. Universities have historically harnessed their First Amendment rights to promote progress, and current opposition to the “don’t ask, don’t tell” policy is but the latest example of the academic world leading the attack against social injustice. This is a monumental opportunity for the Supreme Court to limit the coercive influence of federal financial support in the academic world.