Solomon Amendment Overturned by Federal Appeals Court

December 2, 2004

Colleges and universities cannot be penalized with the withdrawal of federal funds for barring military recruiters from their campuses because the military discriminates against homosexuals, according to the U.S. Court of Appeals for the Third Circuit. The ruling, released on November 29, stated that under the free speech protections in the First Amendment, the government may not force higher education institutions to endorse a message that violates their own policies.

The decision overturns a 10-year-old statute known as the Solomon Amendment that enables the federal government to withhold funds from the Department of Defense (DoD) as well as defense-related money from other agencies. Since enactment of the Solomon Amendment, a number of law schools have restricted military recruiters' access to their campuses because DoD's discrimination against openly gay men and lesbians ran contrary to the institutions' antidiscrimination policies.

The lawsuit, FAIR et al. v. Rumsfeld et al, was brought by an association of law schools called the Forum for Academic and Institutional Rights (FAIR), the Society of American Law Teachers, the Colaition for Equality, the Rutgers Gay and Lesbian Caucus, and several students and professors. Amicus briefs on behalf of the plaintiffs were submitted by the American Association of Law Schools, the American Association of University Professors, Harvard Law School professors, and others. U.S. Defense Secretary Donald H. Rumsfeld and Education Secretary Roderick S. Paige, among others, were named as defendants.

According to Judge Thomas L. Ambro's opinion, the court found that the Solomon Amendment violated the institutions' First Amendment rights by forcing them to "propagate, accommodate, and subsidize the military's message." Ironically, the ruling cited the U.S. Supreme Court decision enabling the Boy Scouts of America to exclude a gay scout leader because "homosexual conduct is inconsistent with...the Scout Oath."

"Just as the Boy Scouts believed that 'homosexual conduct is inconsistent the the Scout Oath,'...the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness," states Judge Ambro.