Following oral argument on Dec. 6, the U.S. Supreme Court is now pondering the wisdom of Solomon. The Solomon Amendment withholds federal funds from any school that does not provide the same access to military recruiters as it does to other potential employers. Law schools have rallied against the rule for violating their nondiscrimination policies as well as their constitutional rights of speech and association. In the balance are the right of Congress to condition the receipt of federal funds, the right of free speech — and literally billions of dollars that could be lost by schools unable to reconcile anti-discrimination policies with their receipt of federal money.
This case has presented a difficult question for academics who generally support gay rights. Last year, this issue was presented to my law school faculty when we were asked to join the Forum for Academic and Institutional Rights (FAIR) in challenging the rule. Twenty-six law schools have joined the coalition, though many have done so anonymously to avoid any retaliation from the government. As a legal commentator, I have long supported gay rights and opposed the ban on openly gay citizens in the military. Yet I spoke against joining FAIR. Despite my personal respect for academics on the other side of this issue, I continue to believe that schools are not just wrong on the law but hypocritical in their positions in this litigation.
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