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We all know about 'Don't Ask, Don't Tell,' that infamous 1993 'compromise' policy that was supposed to allow gays to serve in the military as long as they didn't "tell" anyone they were gay. Instead of reducing the amount of harassment and pursuit of gay members of the armed services, Don't Ask, Don't Tell has actually resulted in a surge of heavy-handed investigations, extracted confessions, and discharges of gay and lesbian service members.
But there's another aspect of the federal government's anti-gay military policy that you may not know about: the so-called 'Solomon Amendment.' Not content with the ongoing purge of gay military members under Don't Ask, Don't Tell, in 1997 Congress passed this amendment; it essentially uses federal funds as a stick to coerce colleges and universities into discriminating against gays.
The vast majority of our nation's colleges and graduate schools depend on federal funding for student loans and student work study programs. For years, many of these schools have refused to allow Reserve Officer Training Corps programs or military recruiters to operate on campus because of the military's discrimination against its gay students.
The Solomon Amendment now requires colleges and universities to let the military recruit on campus — even though it will not, of course, recruit or hire a gay person. If the school does not allow military recruiters or an ROTC program on campus, its federal work study and student loan funding is cut off!
This federal regulation obviously puts schools in a bind, especially in a place like Vermont, where state anti-discrimination law prohibits discrimination against gays in employment and public accommodations. If a school allows the military on campus, it risks violating Vermont's anti-discrimination law, not to mention arousing the ire of the student body. If it refuses to comply, it forfeits its federal student aid, thereby jeopardizing its economic viability and the educational opportunities of many of its students.
A group of students at Vermont Law School has had enough of the Solomon Amendment's blatant discrimination. In late January, an alliance of LGBT and straight students, along with supportive faculty, filed a lawsuit in federal court to try to overturn the amendment. The lawsuit points out that Vermont Law School has prohibited military recruitment on campus for at least 10 years, in accordance with Vermont law and its own anti-discrimination policy.
However, since the majority of the school's students depend on federal student aid, passage of the Solomon Amendment forced the law school to let military recruiters on campus, so that its students would not lose their estimated $420,000 per year in financial aid. In other words, the school was unconstitutionally coerced into acting as an agent of the federal government in discriminating against gay students.
The students are asking the court to declare the Solomon Amendment unconstitutional under the Fifth and Tenth Amendments of the United States Constitution, and to prohibit the federal government from withholding student financial aid funds. The suit could take months to decide, and may well go all the way to the United States Supreme Court.
Interestingly, the students say that the military never even asked to come onto campus before the Solomon Amendment was passed; presumably, it was able to recruit all the Vermont law students it needed by interviewing at recruiting offices off-campus. Once the Solomon Amendment passed, however, recruiters immediately insisted on coming to campus. According to their press release, students believe that the recruiters are "visiting the campus to enforce a Congressional ideology, rather than to meet any supposed military need for Vermont students."
While the lawsuit is going on, a member of Rep. Barney Frank's staff says that the lawmaker intends to introduce legislation in Congress to repeal the Solomon Amendment. Stay tuned!
Susan Murray and Beth Robinson are attorneys at Langrock Sperry & Wool in Middlebury whose practices include general commercial and civil litigation, employnment, family, estate, personal injury, and worker's compensation cases. If you'd like our column to cover a particular legal issue of interest to our community, please write OITM or call us at 388-6356.
