Professor Zengerle Op-Ed on Solomon Appears in Richmond Times Dispatch

The Richmond-Times Dispatch featured a guest column by Professor Joseph Zengerle in which he discussed reasons for the decision by Mason Law Dean Daniel Polsby and others to file an amicus brief last summer in support of the government in Rumsfeld v. FAIR. A recent decision by the Supreme Court to uphold the Solomon Amendment against the challenge presented by an association of law schools (FAIR) in that case underscored the reasoning of the Mason law community, which argued that the power of Congress under the Spending Clause of the Constitution to "raise and support Armies" allowed the conditioning of federal money on granting law school access to JAG recruiters equal to that provided other employers.

Friend-of-the-Court:...Recruiters Will Be Welcomed Here, Richmond Times-Dispatch, March 20, 2006. By Joseph Zengerle.

"It is obvious that a gap between higher education and the military community, which began during the Vietnam era when ROTC was forced off many campuses, persists. George Mason's law school has sought ways to bridge that gap rather than to widen it. The law school has sponsored other programs to explore issues important to this divide between such vital elements of the society, developing a seminar on homeland security and the war on terror, convening a debate on gays in the military which included the Servicemembers' Legal Defense Network, and hosting a panel discussion which included senior defense officials on Guantanamo Bay and detainee policies.

"But the main event, at least in terms of public notice, has been the origination of the friend-of-the-court brief in the FAIR case. Our brief provoked one news headline, 'Military on Campus Splits Law Faculties.' Our faculty who were co-counsel on the brief participated in numerous events, including network news and Sunday morning talk shows, law school panel discussions, blog debates, and written commentary. The number and variety of the individuals who joined our brief in the limited time we had to recruit, not to mention the extraordinary outcome of the case, suggest where mainstream legal thought lies, notwithstanding the views of those in the legal academy who supported the litigation. "

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On another front, the Yale Daily News ran a story that examined the "tension between the ivory tower and the red, white, and blue," in which Professor Zengerle was quoted with respect to Chief Justice Roberts's opinion in Rumsfeld v. FAIR.

Court Upholds Recruiting, Yale Daily News, March 20, 2006. By Andrew Mangino.

"Although the First Amendment dispute was prioritized during oral arguments, the first constitutional question that Roberts addressed in his opinion was the power of Congress to raise a military. He even went a step beyond what the Pentagon was asking for by suggesting that Congress could pass a law requiring military recruiters to have access to college campuses regardless of whether or not a given school accepts federal aid.

'There is no dispute in this case that [the power to raise a military] includes the authority to require campus access for military recruiters,' he wrote.

But Haider disagreed. She said the Pentagon provided no statistics to back up its claim that access to law schools was essential for military recruitment.

Still, Zengerle said he was shocked at FAIR's ignorance of the damage they were in danger of dealing to a vital American interest.

'What was really going on was the vindication — of "don't ask, don't tell," but what really was at stake here was, more importantly, the position of the armed forces and recruitment during a time of war,'he said. 'There were other ways for them to challenge "don't ask, don't tell" directly.'"

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