Supreme Court Weighs Oral Arguments In Draft-Registration, Student-Aid Case

By Linda Chion-Kenney — May 02, 1984 7 min read

Washington--The U.S. Supreme Court is expected to rule by early July on whether federal financial aid, in the form of loans, grants, and college work-study programs, can constitutionally be denied to young men who fail to register for the draft.

The Justices last week heard arguments in the case, Selective Service System v. Minnesota Public Interest Research Group (Case No. 83-276).

At issue is a law commonly referred to as the Solomon Amendment for its sponsor, Representative Gerald B. Solomon, Republican of New York. The measure, which denies aid to young men who fail to register as required by the Military Selective Service Act, was passed by the Congress in 1982 as an amendment to the Defense Department’s authorization bill.

Last June, in a case brought on behalf of six college students, U.S. District Judge Donald A. Alsop ruled the law unconstitutional. The judge issued a permanent injunction barring financial-aid officers from requiring certification of draft registration before processing aid applications. The U.S. Supreme Court, however, reasoning that the law was national in scope, lifted the ban on June 29 and agreed to review the case.

Purposes, Results Debated

Those in favor of the Solomon Amendment say it legally encourages men to register for the draft and promotes a just allocation of limited federal-aid dollars. But those who oppose the law say it is an unconstitutional punishment borne disproportionately by young, low-income men.

Friend-of-the-court briefs filed on behalf of several colleges say the law places their financial-aid officers in the unwanted position of enforcing a criminal statute.

But the trustees of Boston University, who argue in favor of the law, say it furthers the “educational mission” of their university. That mission, according to the trustees’ brief, “seeks to develop in each student a sensitivity to the intimate link between enjoyment of the benefits of membership in a society and participation in the burdens of keeping that society strong, vital, and free.”

Punishment by Legislation

Judge Alsop ruled that the Solomon Amendment violated the Fifth Amendment right against self-incrimination. He also found that the law determined guilt and inflicted punishment on an identifiable group--"nonregistered students"--without a trial.

To deny aid to those who do not register for the draft, the judge said, would constitute “punishment” because it would prohibit a needy student from “the practical means to achieve the education necessary to pursue many vocations in our society.”

Furthermore, the judge said, a student who failed to register on time, but later did so in order to be eligible for financial aid, would provide “a link in the chain of evidence” that could later be used against him.

By law, a man must register for the draft within 30 days of his 18th birthday. Failure to register is a crime punishable by up to five years in prison and a fine of up to $10,000.

No Prosecutions

Solicitor General Rex E. Lee, however, in arguing the case for the Reagan Administration, told the Supreme Court Justices last week that government policy has been not to prosecute late registrants. To do so, he said, would be a “perversion of the statute,” because the intent of the Solomon Amendment is to encourage registration. He said there have been more than 300,000 late draft registrations without a prosecution, and he implied that there would be none in the future.

Mr. Lee argued that the Solomon Amendment does not constitute a punishment because “the nonrealization of an economic benefit that an individual would like to have does not amount to punishment.”

The Solicitor General argued that the students’ “real disagreement” with the Solomon Amendment is “with the Congressional policy decisions that there should be draft registration and that people should be encouraged to register.”

A ‘Special Benefit’

Representative Solomon, in an interview after the court proceedings, said financial aid “is a special benefit and privilege we are giving to young men. Since we don’t have enough money to go around, it should be given to men who live up to their obligation under the law.

“There’s no punishment, simply an added qualification. If you want the money, you register for the draft.”

William J. Keppel, who argued before the Court on behalf of the Minnesota college students who brought the successful lower-court challenge, said that the policy of not prosecuting late registrants could change.

“What the policy is today is not necessarily what the policy is going to be tomorrow,” he said in an interview last week. “If they’re so sincere about not prosecuting, why not [grant immunity to] these late registrants?”

‘Willing’ Registrants Sought

Betty Alexander, a public-affairs officer with the Selective Service System, said in an interview that the government has the power to prosecute late registrants. Nevertheless, Ms. Alexander said, “I seriously doubt the Department of Justice would consider it a valid case, especially in the case of the young man who willingly goes down to register.

“We want people to register,” she explained. “We prefer that they register on time, but we’d rather they register late than not register at all.”

During the week of April 15, the number of men who had registered for the draft reached 12 million--or 97 percent of the eligible population, Ms. Alexander said. About 300,000 eligible men had not registered.

Last August and September, the period when financial aid is generally disbursed, “there were about 75,000 more registrants than considered normal for a two-month period,” Ms. Alexander said. “We believe the Solomon Amendment contributed [to the increase], but we can’t say that all those people who registered during that two-month period would not have done so absent the Solomon Amendment.”

Ms. Alexander said increased publicity and “world situations,” such as the downing of the Korean airliner, the United States action in Grenada, and the terrorist attack against American soldiers in Beirut, also have an effect on the number of people who register.

‘Victory’ for Solomon

But John Kostas, an aide to Mr. Solomon, pronounced the rise in the number of registrants a “victory” for the Solomon Amendment.

The high registration rate is also, he said, a victory in the representative’s crusade to link all federal benefits--such as Social Security and welfare--to draft registration.

Originally, Representative Solomon conceived an “all-encompassing bill” on the principle that “people who do not obey a federal law should not be receiving taxpayer benefits,” Mr. Kostas said.

That bill, however, languished in committee, so Mr. Solomon “adopted a strategy to go after piecemeal what he couldn’t get” across the board, Mr. Kostas said.

The representative “has no intent to single out college-aid recipients per se,” Mr. Kostas said, “but the fact remains that that’s the biggest benefit going to men of registration age, so that’s a significant portion of his whole plan.”

State Measures

Meanwhile, some states are considering proposals that go a step further than the Solomon Amendment. In Tennessee, for example, a bill that would require men to register for the draft as a condition for admission to state-supported public colleges and universities has passed in the state Senate and is in the House for consideration.

A similar bill was passed by the Virginia House of Delegates, but the Senate’s Education and Health Committee carried the bill over to the 1985 legislative session.

Illegal Firing

In other action last week, the Court, on a split 4-4 vote, upheld a decision by the U.S. Court of Appeals for the Seventh Circuit that Jesse A. Vail, a football coach and athletic director at a public high school in Paris, Ill., was illegally fired during his first year on the job. School lawyers and educators had seen the case as a way to clarify the law on due-process rights of probationary teachers under the 14th Amendment.

The Justices’ one-sentence ruling, however, offered little guidance, lawyers said. A tie vote automatically upholds the lower court without setting a precedent for future cases. Associate Justice Thurgood Mar3shall did not vote. He was hospitalized with bronchitis when the case, Board of Education of Paris Union School District No. 95 v. Vail (No. 83-87), was argued on Feb. 28.

Labor Law

In another case with important labor-law ramifications, the Court restricted the activities on which labor unions may spend fees paid to them by non-union members.

In a 8-1 decision, the Justices held that “agency fees” paid by non-union employees cannot be spent for union organizing or union litigation that is not connected with the bargaining unit.

The Court, however, also ruled in Ellis v. Railway Clerks (No. 82-1150) that the union can require the payment of such fees to cover the costs of national conventions, social activities, and, within certain limitations, union publications.

A version of this article appeared in the May 02, 1984 edition of Education Week as Supreme Court Weighs Oral Arguments In Draft-Registration, Student-Aid Case