Solomon Admendment Information
NALP's Solomon Amendment Task Force provides the following links and information to help educate all of NALP's members on the issues surrounding this topic.
In the fall of 1993 President Clinton announced (and then Congress later codified) the "Don't Ask, Don't Tell" policy. This policy is a practical ban on gay men, lesbians and bisexuals serving in the military, and is similar to the policies banning service by such individuals that have been in place for the past fifty years. The prohibition is not conduct related, and an honest statement by a service member of his or her sexual orientation to anyone, anywhere, anytime may lead to discharge from the armed services.
Following the implementation of this policy, colleges and universities began to more broadly prohibit the military from recruiting on campus, and momentum grew for also preventing campus access to ROTC programs.
AALS bylaws require its member schools to have a non-discrimination clause that includes sexual orientation, and further require that a school's facilities only be made available to employers whose practices are consistent with the AALS statement of equal opportunity.
At that time, AALS policy required its member law schools to ban military recruiting unless the schools fit under one of several narrow exceptions (some religious schools, for instance).
The first incarnation of the Solomon Amendment (Solomon I ) was enacted in 1995 as part of the National Defense Authorization Act. This legislation denied Department of Defense funding to colleges and universities that barred ROTC or military recruitment access.
The second incarnation of the Solomon Amendment (Solomon II) was enacted in 1997 as part of the Omnibus Appropriation Act. This legislation dramatically extended the reach of Solomon by including in the list of at-risk funds all monies from the Departments of Labor, Health and Human Services, and Education. This change swept most federal research and financial aid monies into the pool of threatened funds.
The Frank-Campbell Amendment was enacted in October 1999. This amendment protected student financial assistance by removing these funds from the list of at-risk monies.
The Solomon legislation was also recodified in 1999, and in that process the subunit rule was eliminated. Previously, if the law school denied the military access, only the subunit of the law school was at risk of losing funds. After recodification, if the law school denied the military access, the entire university could lose federal funding. Recodification also extended the affected funds to monies from the Department of Transportation.
The AALS response to the Solomon situation has been to require its member schools that are forced to allow the military on campus to take ameliorative actions which can include various outreach and services to GLBT students. Many schools use the military presence on campus to stage educational programs and/or protests.
Military recruiters have demanded equal access on campus (i.e., not alternative interviewing space), and have stepped up their issuance of letters of inquiry challenging law school policies and procedures. Many schools perceive this as deliberate intimidation.
Four lawsuits are currently pending that raise constitutional challenges to various aspects of the Solomon legislative scheme, including the FAIR (Forum for Academic and Institutional Rights) litigation. FAIR is an association of law schools and other academic institutions.
On March 30, 2004, the House of Representatives approved, by a vote of 343-to-81, a bill strengthening the Solomon Amendment. Sponsored by Rep. Mike Rogers (R-AL), HR 3966, called the ROTC Military Recruiter Equal Access to Campus Act, clarifies the existing Solomon Amendment by explicitly stating that military recruiters must have the same access to students as other employers, and it stiffens the penalties for noncompliance by adding two new defense-related agencies which may withhold funding. The bill was first approved by the House Armed Services Committee on March 17, 2004.
In June 2004, NALP's Board of Directors created the Solomon Amendment Task Force, which was charged with educating all NALP members about the issues surrounding the Solomon Amendment.
In November 2004, in FAIR v. Rumsfeld, a suit brought by an association of 30 law schools and law faculties, the U.S. Third Circuit Court of Appeals ruled that law schools could ban the military from campus, concluding that the Solomon Amendment violates the schools' First Amendment Rights.
In January, 2005, in Burt v. Rumsfeld, a suit brought by members of the Yale Law School faculty, a federal district court in Connecticut also declared the Solomon Amendment unconstitutional under the First Amendment.
On May 2, 2005, the United States Supreme Court granted certiorari in FAIR v. Rumsfeld. Oral arguments are scheduled for October 2005, and a ruling is expected before the end of June 2006.
The following website hosted by Georgetown University Law Center is an excellent resource for detailed information on all aspects of Solomon, including all of the pending litigation and legislation: www.law.georgetown.edu/solomon/