The Solomon Amendment: What You Can Do at Your School

On March 6, 2006, the Supreme Court ruled that the Solomon Amendment, which requires law schools to grant equal access to military recruiters in order to receive federal funding, is constitutional. However, the Court emphatically stated that law schools and law students are also permitted to express their disagreement with the military’s homophobic policy of excluding gay men, lesbians and bisexuals from serving. [1] As the Court stated, “[T]he 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.”

If you’re a law student, alumnus or alumna, professor or otherwise employed by the school, there are many ways that you can express your disapproval of the military’s discrimination. Here are some examples, including some specifically mentioned in the Court’s opinion:[2]

• Post signs on school bulletin boards expressing your disapproval of the policy.

• Hand out flyers expressing your disapproaval of the policy, consistent with the school’s general policy for handing out flyers.

• Organize educational programs about the military’s discriminatory policy. Enlist your school’s assistance in producing and disseminating information about these programs.

• Seek discussion of the military’s antigay policy in existing courses.

• Advocate for Congress to repeal the Solomon Amendment as well as the “Don’t Ask, Don’t Tell” policy, and urge your school to be active in advocating that Congress repeal these provisions.

• Organize and engage in protests when the military is recruiting on campus. Protests should follow a school’s guidelines about time, place and manner of protest in a public forum. If, however, your school has an unfair policy regarding protesting military recruiters, you can advocate to change this policy — especially because the Solomon Amendment and this Supreme Court decision specifically permit protesting. If your school is public, any restrictions on speech should not be content-based, nor should restrictions on time, place and manner of the protest be unduly restrictive.[3]

• Urge your school to include an official statement in all recruiting-related materials that, by allowing military recruiters on campus, the school is NOT endorsing the military’s antigay policy, and that the school strongly opposes the discrimination inherent in “Don’t Ask, Don’t Tell.” Here is a sample statement:

  “The Supreme Court has ruled that Congress can require our school to admit military recruiters, in spite of our school’s strong policy against allowing any recruiter on campus who discriminates against lesbian, gay, bisexual and transgender people. [This school] deplores the military’s discriminatory policy and will continue to enforce its nondiscrimination requirements against all other recruiters.”

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[1] The current military policy, commonly known as “Don’t Ask, Don’t Tell,” is embodied in a federal statute (10 U.S.C. § 654(b)), as well as various Department of Defense ("DoD") directives. Section 654(b) provides for a service member's separation from the armed services if he or she has: (1) "engaged in, attempted to engage in, or solicited another to engage in a homosexual act;" (2) "stated that he or she is a homosexual or bisexual, ... unless ... the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts;" (3) or has "married or attempted to marry a person known to be of the same biological sex." 10 U.S.C. §§ 654(b)(1), (2), (3). While DoD Directive 1332.14(H)(1)(a) states that a service member's "sexual orientation ... is not a bar to continued service," lesbian, gay and bisexual service members are prohibited from being open and honest about their identity, relationships, and lives and continue to be subjected to investigation, discrimination, and harassment in the military based on their sexual orientation. In the decade since this policy was adopted, the military has discharged nearly 10,000 lesbians, gay men and bisexuals under the policy.

[3] Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (“Our cases make clear, however, that even in a public forum the government may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest and that they leave open ample alternative channels for communication of the information.’ [citations]”). Even in a nonpublic forum on a public campus, students may be able to challenge a speech regulation by establishing that the regulation is unreasonable or discriminatory based on viewpoint. See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992) (In a nonpublic forum, “[t]he challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker’s activity due to disagreement with the speaker’s view.”).