Is the Solomon Amendment a dead letter? The statute, enacted in 1996, forbids federal funding to universities that prohibit military recruiters or Reserve Officer Training Corps (ROTC) units from their campuses. Yet today, nearly 15 years since the amendment’s passage—and despite President Barack Obama’s campaign pledge to “vigorously enforce” the law—ROTC is still absent from some of the nation’s most selective schools.

That absence is due to the well-known opposition of several prominent universities—among them, Harvard, Columbia, Yale, Stanford, and the University of Chicago—to the congressionally mandated “Don’t Ask, Don’t Tell” policy (DADT) for gays or bisexuals serving in the military. In a much-discussed speech at Duke University this September, Secretary of Defense Robert Gates professed encouragement that these universities were “at least reconsidering their position on military recruiting and officer training—a situation that has been neither good for the academy nor the country.”

Certainly, the recent debate over modifying or eliminating DADT has raised hopes among some that ROTC will return to those colleges from which it has been barred since the Vietnam era. But with the election of many new conservatives to Congress this past week, it appears unlikely that such changes will be coming soon. And, indeed, other than a few perfunctory words in praise of Duke students who serve in the armed forces, Gates was largely silent as to what the department might do to address the current situation—other than to hope universities might one day welcome ROTC back.

That is not by accident. For decades, the Pentagon has taken the path of least resistance when it comes to recruiting at colleges—doubling down at “friendly” schools in the South and Midwest while largely writing off not only top colleges, but also entire regions where many of them are located. And it has been remarkably reluctant about pressing its right to recruit on college campuses, despite a unanimous Supreme Court decision affirming the Solomon Amendment, Rumsfeld v. FAIR (2006). Enforcement has been so lax as to lead some observers, such as University of Florida law professor Diane Mazur, to conclude that no university today maintains an “anti-ROTC” ban.

The history of the Solomon Amendment suggests another conclusion. Many are unaware that a law barring federal funds to schools with anti-recruitment policies has been on the books since the late 1960s. That law, however, was rarely invoked—the Defense Department made free use of a provision allowing the secretary to exempt noncompliant schools. Concerned by the Pentagon’s unwillingness to enforce the law (and by growing university opposition to DADT), Congress, led by New York Republican representative Gerald B. Solomon, eliminated the department’s waiver power from the law and required the secretary to report noncompliant schools every six months.

For its part, the Pentagon strongly opposed the Solomon Amendment. But, as it turned out, the department didn’t need express waiver power if it wanted to avoid enforcing the law. By a quirk in the law’s language, it could simply choose not to ask universities if they were compliant with the law in the first place.

And aside from a brief spate of enforcement activity following the 9/11 attacks and culminating in Rumsfeld v. FAIR, that is just what the Defense Department has done. Indeed, the Pentagon’s current policy toward noncompliant schools resembles nothing so much as “Don’t Ask, Don’t Tell.” Defense officials have quietly advised student advocates for ROTC that the department cannot so much as indicate to a possibly noncompliant university its interest in establishing an on-campus ROTC program for fear of triggering the Solomon Amendment.

Not all students have taken the hint. The very year that the Defense Department won its five-year battle to enforce the Solomon Amendment, students and faculty at the University of California, Santa Cruz, repeatedly blocked or ousted military recruiters from on-campus job fairs. In response, a group of students associated with the conservative Young America’s Foundation wrote Secretary of Defense Donald Rumsfeld, alerting him to possible violation of the Solomon Amendment. Receiving no answer, they sued the Defense Department for its failure to enforce the law.

The students ultimately lost their suit, with the Court of Appeals holding that they lacked standing to sue. Since then, the Defense Department has not taken action against a single university, aside from two holdouts from the FAIR case (two small law schools in Vermont and Minnesota).

Of course, the Defense Department has its reasons for not wanting to strong-arm ROTC’s presence on university campuses via Solomon. Given the level of cooperation between a university and the military needed to make an ROTC program work, it’s understandable that the Pentagon does not want to be in the position of pushing to have a program where faculty and administrative support is lacking.

Nevertheless, it should not be left to the Pentagon to decide whether a law of the land will be enforced or not. By adopting its own version of “Don’t Ask, Don’t Tell,” the Pentagon is only encouraging the growing gap between American elites and those who put their lives at risk for our freedoms. As Gates warned, America can no longer afford its best and brightest thinking of military service as “something for other people to do.”

Cheryl Miller manages the Program on American Citizenship at the American Enterprise Institute.

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