Wednesday, December 08, 2004

Don't ask, don't discriminate

It is very possible that a recent 3rd Circuit Court of Appeals decision could have a major impact on a very controversial part of No Child Left Behind (NCLB).

NCLB requires that high schools allow military recruiters access to campuses and a list of each students' name, address, and phone number. Failure to comply with that provision of the Act can result in the revocation of federal funds.

But last week, the 3rd Circuit Appeals Court ruled that law schools can prohibit military recruiters from their campuses without losing federal funds. The decision reversed a District Court opinion that said the "Solomon Amendment," passed in 1994, is legal. The amendment said that any law school denying access to military recruiters would lose all federal grants from the Department of Defense to any department or college within their university. A few years later, the Departments of Education, Health and Human Services, Labor, and Transportation were added to the list of grantees who would cut funds to universities who prohibited military recruiters' access.

The law schools, through the Association of American Law Schools (AALS), argued that the military's anti-gay policies presented a conflict of interest to their stated position of protecting gay rights. As a matter of policy, law schools accredited by the AALS do not allow organizations or companies that discriminate to recruit on campus. Since the military expels known homosexuals under the so-called "don't ask, don't tell" policy, the law schools prohibited military recruiters on the grounds that they represent a discriminatory organization. The 3rd Circuit Appeals Court upheld their First Amendment right to do that.

It is unlikely that the Supreme Court will overrule them.

So does this open the door for high school administrators to sue the federal government based on the 3rd Circuit's precedent? Absolutely.

According to the American Association of School Administrators' (AASA) 2004 Platform, "[The] AASA supports zero tolerance of all forms of discrimination." And the National Association of Secondary School Principals (NASSP) requires that principals "maintain equal treatment for all students regardless of race, ethnicity, creed, gender, socioeconomic status, sexual orientation, or disability." They assert that all students have a right to "an environment that is free from discrimination..."

The San Francisco and Portland school districts had reversed a policy of banning military recruiters (also because of discrimination against gays) due to the provision of NCLB that requires they allow them. If they choose to once again bar the military from schools -- and refuse to provide them with lists of students' names and phone numbers -- now they would most certainly have the legal authority to do so.

(For the 3rd Circuit's decision, click here. For an analysis of the decision by a Columbia Law school professor, click here. For more on military recruitment and NCLB, click here.)

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