Free Speech, Federal Grants and the "Solomon Amendment"

By U.S. Senator Jon Kyl At time of unprecedented challenge to our national security from a global network of terrorist extremists, ordinary Americans of all political stripes have come together to support our military men and women. In the weeks and months after September 11, 2001, military recruiters were deluged with phone calls from potential volunteers. Even as the memories of that attack fade, most branches of the military continue to meet or exceed their recruiting and retention targets. But one island of troubling hostility remains: college and university campuses. The birth of this unfortunate trend was the movement, during the Vietnam War, to prohibit military representatives from using university facilities from recruitment in the same manner that other prospective employers do. That was a long time ago, of course, but anti-military college administrators have found a new rationale: rather than complaining about the Iraq war itself, they say they object to recruiters on campus because of the Pentagon's policy of "don't ask, don't tell" regarding openly homosexual service members. No one seriously disputes that institutions of higher learning have the same constitutional right as anyone else to bar military recruiters from their premises. A genuinely free society - even in wartime - will accommodate those so shortsighted as to undermine the very institutions that protect their freedom. But in 1993 Congress decided that there should be consequences for this choice - just as all forms of freedom carry a price - and passed a law known as the "Solomon Amendment" (named for its lead sponsor). Signed into law by President Clinton, it makes many types of federal funding to colleges and universities contingent on those institutions extending to military recruiters the same access and treatment that other public and private sector recruiters receive. Its practical effect has been to force many universities to choose between their self-proclaimed principles regarding gays in the military on the one hand, and government money on the other. (By way of example, Yale University received about $300 million this year from the U.S. government.) Predictably, howls of protest erupted over this purported trampling of the rights of free speech, freedom of association, and so forth, and litigation was filed. This month a group of 36 law schools jointly petitioned the U.S. Supreme Court to declare the Solomon Amendment unconstitutional. The case, Rumsfeld v. Forum for Academic and Institutional Rights, Inc., may be decided by early spring. I seriously doubt the court will find any basis for not upholding the law. Common sense tells us that the right to free speech is not also a right to unfettered federal funding. The Solomon Amendment does not abridge anyone's freedom of speech; in the news media, at public demonstrations, or in the classroom. Nor does it affect freedom of association, because no reasonable person would presume that a faculty member's employment at a university allowing military recruitment implies personal support for "don't ask, don't tell." Above all, as Peter Berkowitz of the Hoover Institution notes, "nobody is holding a gun to anybody's head, requiring universities to accept federal funds for academic work." One of the traditional hallmarks of civil disobedience has been a willingness to accept its consequences. For leaders in the civil rights movement, that often meant jail, beatings, even death. Here, it means no federal grants. There is, of course, no constitutional right to federal money, only to free speech and free association. If a university exercises the latter to kick recruiters off campus, the American people (via Congress) have every right to deny them what are in effect government subsidies. That leaves 36 of the nation's top law schools in the awkward position of defending the rather lame contention that they should not be made to choose between their purported principles and their federal funding. What they've never really explained is exactly why. Sen. Kyl serves on the Senate Finance, Judiciary and Energy & Natural Resources committees and chairs the Republican Policy Committee. Visit his website at www.kyl.senate.gov.