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The Solomon Amendment, which requires colleges to allow military recruiters access to college campuses and to have ROTC programs as a condition to receive federal funds, and the current 1993 law barring homosexuals from serving in the military are inexorably linked. I say this since Solomon was passed by Congress to discourage colleges from barring recruiters by make it cost the schools federal funding to do so. Most of the colleges that barred recruiters over the past 25 years did so as a form of protest against the pre 1993 Department of Defense (DoD) policy and then 1993 law barring gays from serving.

What if the 1993 is repealed and Congress requires the military to allow people who are openly gay to serve (a bad idea in my opinion), will that make Solomon moot? I think not.

One only needs to look back to the Vietnam era to remember why many Ivy League colleges stopped having ROTC programs. That was done not because of the DoD policy against gays being in the military, but to protest our military involvement in Vietnam. The current faculties of most colleges today are made up people who were college students in the 1960s and most likely were against the Vietnam War and are thus probably still strongly anti-military.

It is my belief that if people who are openly gay were allowed to serve in the military that colleges would just find another excuse to still make military recruiters unwelcome on their campuses. Most will not try to actually bar the recruiters since the schools want to keep getting their federal funds. Thus some schools would continue their practices of holding rallies and other events prior to and during the recruiter’s visit to discourage anyone from seriously considering military service, make the visit a living hell for the recruiter, and otherwise make the recruiting visit a useless exercise. The schools, and their accrediting bodies such as the American Association of Law Schools (AALS), consider such actions necessary to ameliorate the presence of the recruiters in light of their anti-discrimination rules. The AALS actually requires law schools to ameliorate military recruiters coming on campus due to the 1993 law barring gay or risk losing their accreditation.

How would the schools justify this behavior? It could be for any number of government programs or actions they do not like, such as our continued presence in Iraq or Afghanistan. It could be for some federal action or policy that has nothing to do with the military. Another would be to use the school’s, and its accrediting body’s, anti-discrimination policies.

Most colleges and accrediting bodies have anti-discrimination policies that read like this: This university (or Any school accredited by this organization) does (may) not discriminate against any person on the basis of race, color, creed, national or ethnic origin, age, sex, gender identity, sexual orientation, marital or parental status, disability, source of income, or status as a veteran in admission to, access to, treatment in, or employment in its programs and activities.

Since the military discriminates by law (apart from gender identity and sexual orientation (gays and lesbians)) to varying degrees based on age, sex (no women in ground combat units or on submarines), parental status (single parents in particular), and disability (medical and mental problems, height, and weight); schools would be free to continue being outraged about allowing recruiters and ROTC on campus and continue their ameliorating activities.

Thus the need for Solomon will continue regardless of what happens to the 1993 law regarding gay in the military. It is my contention that Solomon needs to be made even stronger, such as to protect recruiters from agitators – particularly those who the school has invited or encouraged. Also DoD needs to be more aggressive in enforcing Solomon as it is currently written. I am not aware of DoD trying to force a single college to have ROTC on its campus as Solomon allows DoD to do. If anyone knows of any such attempts, please let me know.

http://www.cc.gatech.edu/fac/Thomas.Pilsch/Vietnam.html

Last month we informed you about the new Alliance for Military and Overseas Voting Rights, of which National Defense Committee is a member.  At the very first meeting of the Alliance held January 29^th, Bryan O’Leary, Senior Fellow with NDC, was unanimously elected Vice Chair.  Chip Levengood, Chairman of the Board of our strategic partner, The Overseas Vote Foundation, was elected Co-Chair.  Further, at that first meeting, the Alliance set out its principals and goals for 2009, in whose development NDC was heavily involved.  Specific goals for 2009 include:

• Supporting the work of the Uniform Law Commission to draft a model state law that will modernize and standardize the performance of state election systems, including mandatory online blank ballot delivery to military voters;
• Each chamber of Congress holds at least one hearing on UOCAVA reform in the 111^th Congress.
• Comprehensive UOCAVA voter reform and standardization legislation is introduced in each chamber of Congress, with bipartisan legislative champions also identified in each chamber.
• At least six additional states adopt laws mandating online delivery of blank ballots at the UOCAVA voter’s discretion.
• The new Administration takes immediate action to improve federal oversight and support for UOCAVA voting.
• Specific improvements in voting assistance are implemented for military families.

As also discussed in last month’s newsletter, we need to start building the state-by-state network of concerned citizens, veterans, and military- and veteran-service organizations mostly to protect military ballots on election day, but also to ensure the States enact the uniform laws developed, modernize their military voting procedures, and encourage Members of Congress to reform federal laws and regulations as well.  You are that network, and this will not be effective without your active involvement.  This is not like starting a complete State chapter of a national organization.  We simply need to start identifying those folks in each State that are interested in protecting military ballots in the election process, and get folks up to speed as to what their State’s military balloting laws are.  So, if you can help on this critical effort, please contact me at Bob.Carey@NationalDefenseCommittee.org<, or call me at 917-273-4262.<

Abstract of Mr. Buckles’ Article:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1328028

Comments of others on Mr. Buckles’ article

The Volokh Conspiracy - Bob Jones, the Solomon Amendment, and the …
In response to the application of these anti-discrimination policies to military recruiters, Congress enacted the Solomon Amendment. The Solomon Amendment eliminates certain federal funding otherwise available to an institution of higher learning.

Instapundit » Blog Archive » IS YALE’S TAX-EXEMPT STATUS AT RISK …
IS YALE’S TAX-EXEMPT STATUS AT RISK for violating the Solomon Amendment? Posted at by Glenn Reynolds at 10:53 pm, January 22, 2009

First, the Pew Center on the States released a report entitled, “No Time to Vote,” which conducted a detailed process analysis of each State’s military voting requirements, timelines, and process. That analysis proved what the National Defense Committee has long argued: that archaic State election laws systematically prevent military voters from exercising their right to vote. Specifically, Pew’s analysis showed that Alabama, Arkansas, Connecticut, District of Columbia, Georgia, Maine, Massachusetts, Michigan, New Hampshire, New York, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming are states identified as not providing enough “time to vote” for overseas military voters. Three other states, Minnesota, Pennsylvania, and Vermont were deemed “at risk” with less than 5 days extra time to complete the voting process.

This has been another banner month for military voting rights. Two studies were released in the last month which shows the incredible need for immediate and robust reform of States’ military voting laws.

First, the Pew Center on the States released a report entitled, “No Time to Vote,” which conducted a detailed process analysis of each State’s military voting requirements, timelines, and process. That analysis proved what the National Defense Committee has long argued: that archaic State election laws systematically prevent military voters from exercising their right to vote. Specifically, Pew’s analysis showed that Alabama, Arkansas, Connecticut, District of Columbia, Georgia, Maine, Massachusetts, Michigan, New Hampshire, New York, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming are states identified as not providing enough “time to vote” for overseas military voters. Three other states, Minnesota, Pennsylvania, and Vermont were deemed “at risk” with less than 5 days extra time to complete the voting process.

In essence, military personnel from those 19 States were only able to vote if they went around their State systems and took actions far more aggressive than any average absentee voter would be required to take. For example, the only way military voters in Rhode Island have enough time to vote, according to this analysis, is if they returned their FILLED-IN ballot by fax. That supposes that the military voter is even able to find a fax, which most of us realize is a very unlikely proposition, especially overseas in a war zone. But even if the military voter is able to find a fax machine, Rhode Island’s system forces her to give up her right to a secret ballot, one of the bedrocks of our democratic process. In fact, five additional States join Rhode Island with the dubious distinction of only providing overseas military voters with enough time to vote if those military voters relinquish their right to a secret ballot and send it back by fax or e-mail.

And Pew’s analysis assumes everything works perfectly: mail is delivered on time, the local election official sends out the absentee ballot the very first day it is available, and gives the military voter only one day to fill out the absentee ballot and send it back in. Considering the numerous problems with the military mail system that the National Defense Committee has already brought to the public’s attention, such “perfect performance” assumptions indicate that far more States join these 25 in the notorious distinction of systematically denying their military voters adequate time to cast a secret ballot. We understand why Pew made such assumptions because it is a performance study, and such studies need to set some benchmark for analysis. But we must also remain vigilant to not allow any State the ability to claim the Pew study exonerates its military voting system, or that simply allowing military voters to fax or e-mail in their voted ballot is somehow sufficient reform. It is not, and we cannot accept such onerous impositions on military voters.

What is even more amazing is that the Pew report pins the blame for this disenfranchisement clearly on the very causes National Defense Committee has repeatedly blamed: : reliance on erratic delivery by the US Postal System and the military mail systems and sending out absentee ballots too close to election day. In addition, the report emphasizes that, “In states where laws and practices have been cobbled together over decades, the problem is a failure to take into account how the system works as a whole….” and that, “Even one weak link could break the chain.”

National Defense Committee has long argued for greater electronic support for military voting. While NDC believes full internet voting for military personnel is the only way ultimately to defend completely the Constitutional right to vote of our Defenders of the Constitution, in the interim, we believe that every State should, at the very least, e-mail blank ballots out to military personnel so that they do not have to rely on the vicissitudes of the postal mail system to receive their absentee ballot in time. And that leads us to our second study.

Just before Christmas, the National Institute of Standards and Technology (NIST) released another report, “A Threat Analysis on UOCAVA Voting Systems.” This report analyzed the safety, security, and integrity of greater electronic support of voting for military and overseas voters, specifically the e-mailing and faxing of absentee ballot applications from military voters to election officials, e-mailing or faxing blank ballots back to military voters, and finally, e-mailing or faxing voted ballots from military voters to election officials. The report was remarkable in finding that for the first two steps of this process, namely the e-mailing of absentee ballot applications from military voter to election official, and then e-mailing the blank, un-voted ballot from the election official to the military voter, “can be reliably facilitated and expedited by the use of fax, e-mail, or web transmission. The threats associated with using fax, e-mail, and web transmission can be mitigated through the use of procedural and technical security controls and therefore do not pose significant risks to the integrity of elections.”

This report with the Pew report lays clear the path forward: Every state should immediately allow for the e-mailing of blank ballots to military voters. The NIST report proves that blank ballot transmission to voters does not pose significant security risks, while the Pew report details how not providing that electronic alternative systematically disenfranchises the military voter from states that refuse to do so.

To that end, National Defense Committee has also been supporting the efforts of the Uniform Law Commission to draft a model law that all States could adopt to standardize and expand the processes for military ballots to be delivered and voted. National Defense Committee is an observer on the Uniform Law Commission’s Drafting Committee, and will attend those drafting meetings February 6-7 in Portland, Oregon, and March 6-7 in Chicago. We will keep you advised of those efforts.

However, readers of the National Defense Committee newsletter can help out now. First, the National Defense Committee recently organized the new Alliance for Military and Overseas Voting Rights, a group of 30+ military and veterans service organizations, overseas citizen organizations, and election agencies, with the goal of fundamentally transforming the voting systems for military and overseas voters. If you belong to any organization that you believe should help in this effort, no matter how small, you should encourage that organization to join the Alliance. You can get further information on Alliance membership and goals from NDC Executive Director, Bob Carey, at Bob.Carey@NationalDefenseCommittee.org. Further, as the Uniform Law Commission moves forward in their efforts, you can encourage your State legislatures to adopt these reforms, most importantly allowing for blank ballots to be e-mailed to military personnel. Again, contact Bob Carey if you have information on how to start that effort.

Finally, these efforts don’t come cheap. Although all of the staff of National Defense Committee execute their duties for no cost, the expense of traveling to Uniform Law Commission and Alliance meetings and events is expensive. Your donation, no matter how small, is important to our being able to continue this work to defend the Constitutional rights of those that defend our Constitution. Please help however you can.

President-Elect Obama has announced the dean of the Harvard Law School, Elena Kagan, as his nominee for solicitor general, the government’s top courtroom advocate. Among her many actions while at Harvard was to oppose the Solomon Amendment. Kagan was one of some 40 or so law professors who signed their names to a Supreme Court amicus brief in Rumsfeld v. FAIR that offered a highly implausible reading of the Solomon Amendment that would have rendered it, as Chief Justice Roberts’s opinion put it, “largely meaningless.” The Chief Justice’s opinion ( http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1152 ) rejecting Kagan’s reading of the Solomon Amendment and the other challenges to it was unanimous, including Associate Justice Ruth Ginsburg.

Thus the nomination of Kagan is of great concern to those who believe the Solomon Amendment needs to be vigorously enforced as the Solicitor General has great discretion regarding which cases to take to the Supreme Court. A law that is not enforced might as well not exist. When she testifies at her Senate confirmation hearing this issue must be fully explored, both as to her legal competence and her willingness to enforce laws she disagrees with.

Although the Supreme Court in 2006 upheld Solomon as constitutional, meaning colleges who refuse to allow recruiters on to their campuses lose their federal funding, recruiters at some schools are being driven away by third parties with the school still receiving federal funding. How can this be you may ask.

First, many schools – and their accrediting bodies - still have job recruiting rules that bar employers who practice discrimination, in particular against homosexuals. Since the Supreme Court ruling the schools have adjusted their policies to allow military recruiters on to their campuses, but at the same time they denounce the federal government’s law against open homosexuals from joining, and staying, in the military. It should be noted that the law’s total bar against homosexuals serving is tempered by the DOD regulations that bar recruiters and commanding officers from asking a person about their sexual orientation as a general rule. This policy is often referred to as the Don’t Ask, Don’t Tell (DADT) policy. Thus in a sense the military does not discriminate as part of its hiring process, but federal law mandates non-enlistment or discharge once it is known a person is a homosexual.

Usually when the military recruiters are scheduled to be on the campus some colleges, including Harvard Law School, do several things. They include: Having the dean or president issue a denouncement of the federal law against homosexuals in the military, although they often refer to it incorrectly as DADT; They arrange for several rallies and/or speakers to come during the weeks before the recruiters visit or during the days the recruiters are actually on the campus to protest their coming; Gay rights organizations are notified weeks in advance of the recruiters coming with the express purpose and encouragement for them to come and protest the recruiters visits and do other things to disrupt the recruiting efforts; Student organizations that are sanctioned and funded by the school, particularly gay rights ones, are likewise encouraged to host anti military recruiter events, protests, and other actions. One of their favorite tactics is to sign up for all the interview slots so no seriously interested students can obtain information about joining the military.

The net effect of all this is that some colleges allow the recruiters access to their campuses but at the same time the school’s administration does everything it can to disrupt the recruiting efforts.

It has reached the point where military recruiters at many colleges are like blacks trying to enter southern colleges in the 1950s under court order. Thus far no college president has done a George Wallace and physically tried to block the recruiters from entering the building. Instead they incite others to do this for them.

There are a couple of solutions. The first one is to require the college administration to do all in its power make sure the recruiters visit is not disrupted. The administration has a duty to protect all of its lawful guests/customers. Just like a hotel, landlord, or merchant, failing to do so means they are subject to being sued. It should not take another federal law to allow federal judges to see this and support the federal government in denying a college federal funds for allowing others, often surrogates of the college, to disrupt the recruiters from doing their job. If additional legislation is needed, DOD should have Congress further define what the college’s duties are regarding recruiter access in order to receive federal funds.

The second solution is for recruiting offices to seek the escort of U. S. Marshals. This may have to be tied to them getting a court order even though the school has technically invited them on to the campus.

A third solution, and one that I would think would work the best, is for DOD each year to survey the local recruiting commands to see if they have had any problems gaining access to colleges – regardless of who actually blocked their access. The only requirement would be that the college had been placed on notice at the time of the disruption – unless of course the dean is standing right there seeing it – by the recruiters. Any college that received a negative rating would immediately lose its federal funding for that year and would continue to do so until the area recruiting commands issued a positive report. Colleges would of course be free to challenge such funding cut offs in federal court, but they would have little chance of success, particularly if the current law was modified to specify the college’s funding is conditioned on successful recruiter access, even if the college really did all it could to protect the recruiters but failed.

Doing the above would cause colleges to stop encouraging others to disrupt military recruiting visits. They could still express their disdain for the wisdom of Congress barring gays from the military as the Supreme Court held was their right in Rumsfeld v. FAIR, but with millions of dollars at stake they probably would be a little less vocal if doing so interferes with the recruiter’s on campus visit. As the schools have all year to express their disapproval of gays being barred from the military to their student body their First Amendment right of free expression would not be unduly stifled. They may even continue to make their distain know during the one or two days a year recruiters on campus so long as the recruiters’ visit is not interfered with. Call it a fair balancing of interests.

In defense of the colleges, they are like children testing the limits their parents set for them. The problem as I see it is the parent, the federal government, is very reluctant to discipline them for violating the law. As with all children, if you do not use the rod (cut off the money) you will spoil them and thus encourage similar bad behavior. As a parent I learned long ago, when your child does wrong you punish them immediately. If you are in a good mood or the violation was a momentary lapse in judgment you can let them off with a warning. A second time you must punish, not warn, or your rules/commands will no longer be taken seriously. To regain control often means having to punish more harshly. My concern is that if Elena Kagan, or others with her views, is put into positions of power at DOJ and the Solicitor General’s Office, that the Obama administration by legal inaction will have the effect of repealing not only the Solomon Amendment but the law barring open homosexuals from serving in the military.