Solomon Amendment

The 1996 Solomon Amendment is the popular name of 10 U.S.C. § 983, a United States federal law that allows the Secretary of Defense to deny federal grants (including research grants) to institutions of higher education if they prohibit or prevent ROTC or military recruitment on campus.

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History

In the 1980s, U.S. Representative Gerald B. H. Solomon (R-NY) sponsored a series of "Solomon amendments" that conditioned eligibility for federal financial aid for higher education and job training, federal government employment, and other federal benefits on certification by the individual that they either had registered with the Selective Service System or were not required to register. This was successfully challenged in federal District Court in 1983 on the grounds that it determined guilt and inflicted punishment without judicial process. The Supreme Court reversed that decision in Selective Service System v. Minnesota Public Interest Research Group (1984).[1]

The Solomon Amendment relating to ROTC and military recruiting was passed in 1996.[2] It denied federal grants from 8 federal agencies, including research grants, to colleges and universities that prohibit or prevent the U.S. armed forces from recruiting on campus in a manner "at least equal in quality and scope" as other employers or that fail to allow for ROTC programs as part of their academic programs subject to the same standards as other academic programs. It was recodified in 1999.[3] The law was amended in 2002 to cover recruiting by the Coast Guard as part of the Department of Homeland Security.[4] It also provides an exception for any institution with "a longstanding policy of pacifism based on historical religious affiliation."[5]

It was revised in later years, most importantly in 1999, when Rep. Barney Frank (D-MA) sponsored an exemption for financial aid funding (Pub L. 106-79 Sec. 8120), and again in 2001, when the Republican leadership of the House Armed Services Committee included language denying all federal funding to a university if any of its schools blocked access to recruiters. This alteration significantly strengthened the reach of the Solomon Amendment, since recruiters were most often denied access to law schools, which receive little federal money.

Constitutional challenge

Since 1991, the Association of American Law Schools, the principal consortium of United States law schools, required that all of its member institutions establish a policy prohibiting discrimination on the basis of sexual orientation and that member schools require the same policy of any employer to which it grants access for recruiting employees.[6] Many law schools used to oppose military recruitment on campus because the military's "don't ask, don't tell" policy denying employment in the military to open gays and lesbians contradicted their non-discrimination policies.

In 2004, the U.S. Third Circuit Court of Appeals found for the Forum for Academic and Institutional Rights, a group representing law schools, led by Professor Kent Greenfield of Boston College Law School, opposed to the presence of military recruiters on campus.[7]

On appeal, the U.S. Supreme Court in Rumsfeld v. FAIR upheld the Solomon Amendment in a unanimous decision[8] on March 6, 2006. Chief Justice John Roberts, writing for the majority, wrote: "As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say."[6]

At least two institutions (Vermont Law School, and William Mitchell College of Law) have declined to allow military recruiting on campus in the past.[9] Both positions were taken as a protest to the military's "don't ask, don't tell" policy.[10] These schools receive little in way of federal funds compared to large research universities, making it more feasible to forgo the federal funding.[9] With the repeal of "don't ask, don't tell" in 2011, both schools removed their bans on campus military recruiting.[9]

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References
  1. James B. Jacobs, Socio-Legal Foundations of Civil-Military Relations (Transaction Publishers, 1986), 104-6, available online, accessed March 13, 2012
  2. § 541(a), Division A, Title V of the National Defense Authorization Act for Fiscal Year 1996, Pub.L. 104–106, S. 1124, 110 Stat. 315, enacted February 10, 1996
  3. § 549(a)(1), Division A, Title V of the National Defense Authorization Act for Fiscal Year 2000, Pub.L. 106–65, 113 Stat. 609, enacted October 5, 1999
  4. § 1704(b)(1) and § 1704(b)(3), Title XVII of the Homeland Security Act of 2002, Pub.L. 107–296, 116 Stat. 2314, enacted November 25, 2002
  5. 10 U.S.C. § 983(c)(2)
  6. New York Times: Linda Greenhouse, "U.S. Wins Ruling Over Recruiting at Universities," March 7, 2006, accessed March 13, 2012
  7. New York Times: Adam Liptak, "Colleges Can Bar Army Recruiters," November 30, 2004, accessed March 13, 2012
  8. Rumsfeld v. Forum for Academic and Institutional Rights
  9. "Holdout Law Schools To Accept Military Recruiters". The Huffington Post. Retrieved 2016-02-09.
  10. Zezima, Katie (2008-06-29). "Law School Pays the Price in 'Don't Ask' Rule Protest". The New York Times. ISSN 0362-4331. Retrieved 2016-02-09.
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