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Supreme Court backs Gerald Solomon's law

The Supreme Court unanimously slapped down one of the curiosities of the "Me Generation."

It was that a university with one hand could beg for cash Congress provides for the defense of the nation and with the other hand make it more difficult to recruit talented leaders for its armed forces.

Former Gov. Mario Cuomo ardently believed in it, and so did the State University of New York a dozen years ago.

Fortunately, the high court has trashed that hypocrisy. By an 8-0 vote, it upheld the Solomon Amendment, which says the federal government can withhold grants from campuses that deny access to military recruiters that it allows for recruiters of other enterprises.

Named for a decorated Marine veteran, the late Congressman Gerald B.H. Solomon of Glens Falls, the law marks a line that divided New York politics in the 1980s and 1990s, and still does.

Republican Solomon, who dropped out of college to enlist during the Korean War, saw himself as a defender of upstate small-town values like responsibility against the rights-consciousness of Manhattan and the big schools of the East.

Solomon saw a chance to plunge into the culture wars when SUNY, with Cuomo's blessing, elected to go along with a State Supreme Court ruling on homosexual rights. The state judge said that SUNY's law school in Buffalo could bar military recruiters from the school because the military discriminated against gays.

UB's law school was one of many that took this action. It was its way of rejecting the Clinton administration's "don't ask, don't tell" policy on admitting homosexuals to military service.

Announcing SUNY's policy in 1994, then Chancellor D. Bruce Johnstone said it would not affect federal research grants. Solomon proved Johnstone wrong.

Fearing the loss of billions in research grants, the big schools gradually backed down and admitted military recruiters. UB Vice President Dennis Black says military recruiters are now welcome at UB's law school.

Even so, a federal appeals court in Philadelphia recently rejected the Solomon Amendment. The issue reached the U.S. Supreme Court, presided over by Chief Justice John G. Roberts Jr., in the case FAIR v. Rumsfeld. The court held for Defense Secretary Donald H. Rumsfeld against FAIR, Forum for Academic and Institutional Rights.

FAIR maintained Solomon interfered with a university's constitutional rights of free speech and association. In a word, the colleges said Solomon barred them from saying they opposed discrimination against homosexuals. FAIR also said Solomon could not force universities to associate with the military.

But Roberts, in a 21-page decision, wrote that Solomon "neither limits what law schools can say, nor requires them to say anything."

"It affects what law schools must do -- afford equal access to military recruiters -- not what they may or may not say," Roberts wrote. ". . . In this case, FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect."

The fact that liberal associate justices like Ruth Bader Ginsburg offered no dissent shows that Solomon is not only legal, but fair.

Commenting, Daniel Polsby, law dean at George Mason University, said: "Many law professors really do believe . . . that their own strongly held policy preferences are all encoded somehow in the Constitution. This is a timely reminder that it just isn't so."


In last Monday's column on the Torino Winter Olympics, I quoted Josh Madden, whom I said was "faculty" at the University of Maryland's journalism college. The college says Madden is a "teaching assistant" there and, as such, is not a member of the faculty.


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