The decision of a federal appeals court to allow colleges and universities to restrict military recruiters' access to students without the risk of losing federal funding will have no impact on Princeton, University officials said Tuesday.
"Princeton's current policy is to permit military recruiters on campus. We also house an ROTC [Reserve Officers' Training Corps] program," Provost Christopher Eisgruber '83, a constitutional scholar, said in an email message. "That was true before the Solomon Amendment existed, and I do not expect the Third Circuit's decision to change our longstanding policy."
In a two-to-one ruling Monday, the U.S. Court of Appeals for the Third Circuit in Philadelphia ruled that the federal government cannot legally enforce the Solomon Amendment, which compels colleges to ignore their nondiscrimination policies for gay and lesbian students and provide military recruiters equal access to campus, or risk losing all federal funding.
Since its enactment, the Solomon Amendment — though it applies to all colleges — has been a source of contention among law schools, which require recruiters to sign a pledge affirming that they will not discriminate based on sexual orientation or other factors.
The Department of Defense (DOD), which discharges known gay service members under the "don't ask, don't tell, don't harass" policy, has refused to sign the pledge.
The University's decision to continue its involvement with ROTC programs and allow access to military recruiters despite its own nondiscrimination policy has always been a deliberate, voluntary one, Vice President and Secretary Robert Durkee '69 said in an email.
"The University's position was adopted in response to campus interest in these [ROTC and other military opportunities], not in response to the Solomon Amendment," Durkee said. "So they are not policies we were 'forced' to adopt."
Eisgruber defended Princeton's position and said the University's choice does not violate its nondiscrimination policy because it "does not require us to exclude from campus others who do discriminate."
"Princeton is committed to principles of equal opportunity, including with regard to sexual orientation," Eisgruber explained, "but we do not believe that our opposition to the military's policies should interfere with the ability of interested students to pursue military careers."
Though enacted in 1996 under the Clinton administration, the Solomon Amendment was not fully enforced until President Bush took office in 2001. Since then, many law schools — some of which had initially restricted military recruiter access — have reversed their positions for fear of losing federal funds, which often make up a large portion of university budgets.
While 24 law schools across the nation joined anonymously in the lawsuit along with dozens of individual faculty members from several prominent law schools, university administrations have come under criticism for not formally denouncing the DOD policy and joining the suit as institutions.
Though Harvard University President Lawrence Summers, Clinton's former treasury secretary, wrote in a letter to the university's gay alumni that "the Solomon Amendment as interpreted and enforced is bad public policy," he resisted pressure to have Harvard join the lawsuit, according to the Harvard Crimson.
His decision, along with those of several of his peers, has come under fire from critics of the amendment.
"Harvard should be ashamed of itself for not having brought the lawsuit and for having capitulated to an immoral and probably illegal extortion," Alan Dershowitz, a prominent Harvard Law professor, told the Crimson on Monday. "We failed our gay and lesbian students. We failed our own principles."
Princeton has been no exception to the lack of formal legal involvement against the amendment — and without reason, according to one professor who is leading the charge against it.
"Princeton can become a leader among schools that have ROTC programs and no law schools — a leadership niche role," explained Chai Feldblum, a constitutional scholar at Georgetown University Law Center and one of the most vocal critics of the Solomon Amendment.
But joining a lawsuit against the amendment would have been an unwise choice for Princeton, Eisgruber said.
"Universities need to choose with care the rare occasions when they join amicus briefs," he said. "We are educational and research institutions, not advocacy organizations. Participating in a lawsuit makes most sense when the issue is directly related to our operations or to our special expertise."
Because the University's longstanding policy was not inconsistent with the aims of the amendment, "this case does not fall into the small group where intervention is appropriate," Eisgruber said.
According to Durkee, the University has made its opposition to the amendment clear through other means.
"We have joined with many other universities in expressing opposition to it as a matter of public policy through the various higher education associations that help to represent our interests and concerns in Washington," he said.
In its ruling, the court argued that the Solomon Amendment violates schools' First Amendment rights as it "requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom."
Invoking a recent Supreme Court case that permitted the Boy Scouts of America to exclude gay members based on "expressive association," Judge Thomas Ambro of the Third Circuit said that by the same logic, colleges are allowed to choose whom they associate with.
"Just as the Boy Scouts believed that 'homosexual conduct is inconsistent with the Scout Oath,'" Ambro wrote, "the law schools believe that employment discrimination is inconsistent with their commitment to fairness and justice."
Ambro, a Clinton appointee, was joined by Judge Walter Stapleton, a Reagan appointee, in his ruling.
The dissenting judge, Ruggero Aldisert, a Johnson appointee, wrote that the court's decision was misguided, in particular because of the nation's wartime position.
Aldisert also noted that while they allowed the recruiters' access, colleges were free to criticize the DOD as much as they pleased on First Amendment grounds.
Monday's judgment overturned a lower court ruling and is the first time a court has ruled that the federal government cannot enforce the Solomon Amendment, which is named for its author, the late Congressman Gerald Solomon of New York.
Though the court's ruling technically applies only to Delaware, New Jersey and Pennsylvania, experts said that it will most likely affect university policies across the country.
Faculty and student suits from Yale University and the University of Pennsylvania are pending.
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