The Solomon Amendment – Will It Still Matter If Congress Changes the Law on Gays in the Military?

March 6th, 2009

By Commander Wayne L. Johnson, JAGC, Navy (Retired), Alexandria, VA

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What if the 1993 is repealed and Congress requires the military to allow people who are openly gay to serve (a bad idea in my opinion), will that make Solomon moot?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.