The Third Circuit Court of Appeal issued a non-sequitur in its decision yesterday striking down the Solomon Amendment, which barred federal funds from universities and colleges that ban military recruiters from their campuses. In its decision, the court incoherently equated colleges with the Boy Scouts:

A three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, found that educational institutions have a First Amendment right to keep military recruiters off their campuses to protest the Defense Department policy of excluding gays from military service.

The 2-to-1 decision relied in large part on a decision in 2000 by the United States Supreme Court to allow the Boy Scouts to exclude gay scoutmasters. Just as the Scouts have a First Amendment right to bar gays, the appeals court said, law schools may prohibit groups that they consider discriminatory.

The 1995 law at issue in the decision, the Solomon Amendment, barred the federal government from disbursing money to colleges and universities that obstruct campus recruiting by the military. As amended and interpreted over the years, the law prohibits disbursements to all parts of a university, including its physics department and medical school, if any of its units, like its law school, make military recruiting even a little more difficult.

First, any campus that bars military recruiters exhibit a bigotry of their own and imply that their student body has less-than-adequate ability to make decisions on their own -- hardly a stunning recommendation for an institution of higher learning. If their students cannot resist enlisting at the very sight of a man or woman in uniform, then perhaps their admissions offices need a housecleaning. Since when is it a university's mission to limit the opportunities provided to its students?

Beyond that, the court got this one wrong from the moment they put pen to paper. No one doubts the ability of the universities to ban military recruiters; that's not just a First Amendment right, but also a Fourth Amendment right as well. However, universities do not have a right to federal monies to operate their institutions. If they deny access to the federal government, then the federal government has the right to disqualify the institution from benefitting from its business. The Third Circuit operates from the belief that universities somehow have an entitlement to federal funds, a judgment that makes a mockery of Congress' control of federal expenditures.

I suspect this silly decision will be overturned, either en banc or at the Supreme Court. In the meantime, the decision should be stayed immediately.

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The Solomon Amendment became law in 1995 (note to liberals: under Clinton). It provides that certain federal agencies are prohibited from providing federal funds or contracts to universities that prevent access to campus by military recruiters, which ... [Read More]

Tracked on November 30, 2004 10:49 AM