Speech, Silence, and the Solomon Amendment

March 21, 2006

We would all like to think that discrimination is a thing of the past, relegated to backwater holes and hardnosed bigots. The sad fact is that discrimination is alive and well not only in the hearts and minds of hardnosed bigots but also enshrined in federal policy. The fact that it operates on sexual orientation rather than skin color or religious preference is considered by many to be an excuse of some kind, but I fail to see how. Millions have been silenced in the name of the military’s Don’t Ask, Don’t Tell policy, a guideline so controversial it has earned proper noun status.

The most recent attempt to overturn the policy was the Forum for Academic and Institutional Rights’ lawsuit over the 1996 Solomon Amendment, which requires recipients of federal funding to provide military recruiters the same “access to campuses and students that is provided to any other employer.” Several law schools have objected on the grounds that such a regulation constituted a violation of the freedoms of association and speech. They argue that providing career fair access to an employer who doesn’t meet their non-discrimination policy expresses approval of the policy itself. The Roberts court reached a unanimous decision against the law schools, holding that facilitating military recruiter access is more conduct than speech and that the law schools were not “associating” with the recruiters simply by giving them access to the job fairs.

There are several interesting things about this opinion. First, Roberts managed to get the entire court to sign on to a single opinion in a case that involves two public opinion hot potatoes: civil liberties and alternative sexuality. (Not just homosexuality! Remember, the military doesn’t care what you consider your orientation; if you’ve “performed homosexual acts,” you get kicked out.) Roberts managed to persuade his fellow justice by holding that there was no limitation on speech at all, not that this was an acceptable limitation on speech. In fact, Roberts specified that the schools were welcome to post signs, send out e-mails, and hold rallies denouncing the military’s discriminatory policy. Second, Roberts completely avoided any holding regarding the policy itself. Without a word as to the policy’s constitutionality or whether it was even discriminatory, Roberts ruled in its favor.

The third issue, though, is Roberts’ sleight-of-hand with the definition of “access” in the phrase “the access…provided to any other employer.” Rather than holding that mere consideration for participation in the job fair is “access,” Roberts held that the military must actually be allowed in with full privileges. It seems to me that being allowed to apply for a spot in job fairs constitutes access and that the military ought to be considered against the same non-discrimination policies as all other prospective employers. The purpose of the law is to prevent schools from excluding the military, not to grant the military special access to campuses, but the court held that “the access…provided to any other employer” means the highest level of access to the event itself. Holding that schools must violate their own discrimination policies in favor of the military’s policy would of course be anathema; by placing “access” inside the context of the fair itself and completely ignoring the application process, Roberts has managed to avoid such a draconian holding.

Nonetheless, the policy itself is completely inexplicable. If the military had imposed a “don’t ask, don’t tell” policy which required one to remain silent or risk expulsion if one were not Christian, the entire country would be up in arms. If one had to wear make-up to cover one’s skin color, there would be riots. But not acting gay? Nothing to it, right?

Because censorship and discrimination still operate against those of us who are not heterosexuals, I’d like to voice my support for GSU Law School’s Day of Silence, sponsored by OUTLaw, our GLBT organization. This Thursday, March 23, 2006, many law students will be wearing black and taking a 24 hour vow of silence to remind our peers that the hate is still rampant and even the legal obstacles to true equality still remain. I’m sure campus-wide participation is welcome. Visit www.dayofsilence.org or drop by the lobby of the Urban Life Building during the day Monday-Wednesday for more information.