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Lacking the Wisdom of Solomon: Law Professors' Misguided Opposition to the Solomon Amendment By GMU Professor Peter Berkowitz, National Review Online, December 5, 2005.
Military on Campus Splits Law Faculties (The National Law Journal, 09-07-2005)
Joseph Zengerle, Executive Director of the Clinic for Legal Assistance to Servicemembers (CLAS), appeared on C-SPAN's Washington Journal to discuss Military Recruiting on Campus, Sunday, August 28, 2005.
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The Solomon Amendment was passed in 1994 in order to counter a policy, previously adopted by the Association of American Law Schools (“AALS”) and imposed on all of its members, that required schools to exclude military recruiters from campus. The AALS acted because of its disagreement with another federal statute, 10 U.S.C. § 654, that makes openly homosexual people ineligible for service in the armed forces.
The Supreme Court granted certiorari in the F.A.I.R. case last spring and will hear oral argument on December 6 of this year. A number of members of the George Mason community wanted to place their views before the Court in this important case, and arranged for the filing of a brief amicus curiae in support of the petitioner (Rumsfeld) in July, 2005. The Webmaster asked some questions of the authors of the amicus brief.
Q: Why did George Mason decide to file a brief in Rumsfeld v. F.A.I.R.?
A: The school did not. This is an individual rather than an institutional matter. Dean Polsby, Professors Lund and Zengerle, and a number of other George Mason professors and students thought it was important for the Supreme Court to hear from people in legal education who strongly disagreed with F.A.I.R. So they organized amici and were fortunate enough to find a Washington law firm, Wiley, Rein & Fielding, to prepare a brief amicus curiae as a pro bono project. In the end, nearly a hundred amici from dozens of law schools across the country signed on, including professors and students from Harvard, Stanford, Berkeley, Virginia, Georgetown, Texas, Northwestern and USC -- not to mention George Mason. Dean Polsby and Professors Lund and Zengerle are “Of Counsel” – in other words, co-authors -- on the brief.
Q: What was F.A.I.R.’s motivation for filing the lawsuit?
A: Lead counsel for F.A.I.R. has told the New York Times and others that the military are “bigots” – his word – because the armed services exclude openly homosexual people from serving. F.A.I.R. argued that it was unconstitutional for the government to “force” law schools and faculty to associate with bigots. There are two problems, though, with this argument. First, complying with conditions that are attached to government grants isn’t the same thing as being “forced” to do anything. Anyone who has ever dealt with the government knows that public funds always have strings attached. People who don’t like the strings can just walk away from the money. That’s hardly coercion. Second , the ineligibility of those who are openly homosexual to serve in the armed services comes from a public law -- 10 U.S.C. § 654. The constitutionality of that law, familiarly called “don’t ask, don’t tell” (DADT), has been upheld in several cases and is not even challenged in this case.
Q: So in other words, F.A.I.R takes issue with the military because of the latter act of Congress (the DADT statute)?
A: Yes. The armed forces have to obey the law. The principle of civilian control of the military prevents the services from disobeying a clearly expressed and duly enacted policy. It seems very odd that the members of the F.A.I.R. coalition are so insistent on their rights to uninterrupted subsidies from Congress, whose policies they regard as “bigoted,” while continuing to discriminate against the military, which is only obeying a law that the F.A.I.R. plaintiffs haven’t even challenged. Furthermore, F.A.I.R. and others who don’t like DADT have an appropriate forum to contest it: a proposed amendment to the DADT law, HR 1059, is now pending before Congress.
Q: What was the argument of the amicus brief?
A: A pdf of the brief is on this website. Amici argue that it is perfectly appropriate for Congress to utilize the Spending Clause of the Constitution in aid of its powers under Article I, Section 8, clause 12, to raise and support armies. They also maintain that the First Amendment basis for the Third Circuit’s decision is unsound.
Q: What is George Mason’s policy on discrimination?
A: The University’s Board of Visitors has a policy that prohibits discrimination on the basis of, among other ascriptive characteristics, sexual orientation. The law school accordingly asks prospective employers to sign a pledge that promises that law students’ opportunities will not be affected because of these characteristics, which include (among others) race, creed, color, national origin, handicap and sexual orientation. However, the law school welcomes military recruiters on campus. In doing so, we are simply complying with Virginia statutes that mandate equal access for military recruiters in state schools. But beyond those statutes, our belief is that the military is not “discriminating” in any meaningful sense of the word. They are, after all, compelled -- by a concededly valid law -- to exclude self-acknowledged homosexual applicants from service. Law students shouldn’t be deprived of employment opportunities because somebody wants to make a political point at their expense. The AALS wants to impose a lock-step conformity on law schools on this issue. This is wrong. There is room in American legal education for many different attitudes about the military and higher education. Some schools will wish to reflect their faculty’s antagonisms toward the military and ban Judge Advocate General Corps recruiters, just as, from the Vietnam-era onward, they have banned ROTC and other military activities from campus. They should be free to stand up for what they believe, and we should respect them for acting on their conscience -- especially when doing so costs them their federal grants and contracts. Other schools will be more like George Mason – actively friendly to the military, welcoming JAG officers to recruit, operating a Clinic for Legal Assistance to Servicemembers, doing all possible to effectuate a rapprochement between the military and university-based law schools, and trying to find a middle way between contending positions and values. We should be proud to be a part of that diversity of viewpoints and commitments that is one of the greatest strengths of American higher education.
Q: Why should members of the law school community take sides in this argument?
A: Of course every member of the community is free to make up his or her own mind on this subject, and to take sides or not. But it is an important argument. It’s about whether to keep the campus open or to close it. It isn’t about the narrow question in this case; the problem is larger. What is the appropriate role of universities in dealing with controversial policies? Should they formulate some orthodox position and seek to impose it? Or should they make room for different points of view? We think our role ought to be to facilitate the debate, not privilege one answer over another in the middle of the debate. We should be sponsoring events at which people who disagree about this and other hot subjects can confront one another in civil and rational public conversation. We did that earlier this year when the school sponsored a forum on DADT. There is plenty of room for further dialogue about the military and higher education. And we hope that George Mason will continue to be a place where that debate can occur.