The Nov. 30 Philadelphia federal appeals court decision overturning the 1994 Solomon Amendment has had broad implications for military recruitment on college campuses. University administrators nationwide are scrambling to adjust to the important judicial decision, which now allows universities to ban military recruitment from their campuses and still receive federal funding.
University President Amy Gutmann has addressed the issue with certain groups on campus and has given signs of where the Penn administration is headed on this controversial issue.
"We need a stable legal environment to set policy," Gutmann said. "We are currently not at a stable equilibrium."
The issue with giving military recruiters the same access to students as other employers is that the military has a "don't ask, don't tell" homosexual conduct policy. Opponents of the Solomon Amendment argue that the presence of military recruiters on campuses clashes with university non-discrimination employment policies and First Amendment rights.
Though an initial court decision has been rendered, the case is far from over. The U.S. Justice Department could ask the full Third Circuit panel to hear the case or could even appeal the decision to the U.S. Supreme Court.
Given the legal ambiguities surrounding the court decision, Gutmann has elected to take a cautious approach in formulating a policy on campus military recruitment. In an e-mail to Jacob Press, the co-chairman of Penn's Lesbian Gay Bisexual Transgender law school organization, Lambda Law, Gutmann wrote that "given the legal uncertainties, and the fact that there is no recruitment imminent, we believe the wise course of action is not to act precipitously, but to wait as developments unfold." She said that the issue was a serious one and that "non-discrimination, openness and tolerance" are "a core commitment of this University."
Members of Lambda Law were pleased with Gutmann's response and sensitive to her position. "The tone of the letter was very supportive of our efforts," Lambda co-chairwoman Maura McKenna said. "It's early in the process, especially with appeals, so it's perfectly understandable to play a wait-and-see game."
LGBT Center Director Bob Schoenberg agreed. "It would be imprudent to make a change based on a three-judge decision, only to have to reverse the procedure again if the decision is not upheld," he said.
After talking with Gutmann in a Dec. 21 meeting of the Affirmative Action Council, Schoenberg believes the administration's next course of action may be to modify its Equal Opportunity/Affirmative Action statement. The revised statement would include a footnote acknowledging that the presence of military recruiters and Reserves Officers' Training Corps on campus will be in conflict with the University's non-discrimination policy until the Department of Defense policy changes.
"It's symbolic," Schoenberg said. "It says we are in a bind, but that we're not naive and that we know we are currently inconsistent with our own principles."
Within 24 hours of the court ruling, Harvard Law School reinstated its ban on military recruitment on campus. Military recruiters will no longer have access to Harvard Law's career services office, but will still be able to recruit through the Harvard Law School Veterans Association, a student organization. Harvard Law spokesman Michael Armini said that Harvard Law Dean Elena Kagan made her decision because she felt it was an "issue of principle."
Schoenberg said that Harvard's action was mostly symbolic. Given the fact that military recruiters will still be allowed on Harvard's campus, Schoenberg felt Harvard was simply creating an environment that was "separate but equal" for LGBT students.
