Law schools across the country are preparing to wage a war on the military’s “Don’t ask, don’t tell” policy.
A group of law schools, law professors and student groups filed a lawsuit Sept. 19 against the the Department of Defense contesting the withdrawal of federal funds from any university that does not offer military recruiters access to students and student records. The lawsuit considers the military’s “Don’t ask, don’t tell” attitude to be improper discrimination by the Association of American Law Schools.
Northwestern University Law School professors declined to comment on whether NU is part of the lawsuit.
The U.S. District Court has yet to comply with the Department of Defense’s dismissal request or the coalition’s preliminary injunction.
The Forum for Academic and Institutional Rights, formed by Boston College law Prof. Kent Greenfield, filed the lawsuit the suit, representing a group of unnamed law schools. The group of law schools involved in FAIR remains secret, according to New York University law Prof. Sylvia Law, who is vice president of FAIR, because the schools fear retribution such as the loss of all federal funding, including research grants and some types of student aid.
These schools argue that the Solomon Amendment, a 1997 law requiring that all universities allow military recruiters access to students and student records, is unconstitutional. If schools do not comply, the federal government can withdraw all funds the school receives — including money for research. Although the law is not new, enforcement of the policy has changed recently.
“In the past year, the Department of Defense has been more aggressive in threatening termination of funds,” Law said. “They are not just requiring that access be allowed, which was mostly granted, but access on the same field as other groups.”
At Northwestern some students are supportive of FAIR’s efforts. “I think the lawsuit is in order because the Solomon Amendment takes away the right to academic freedom,” Weinberg senior Jacob Reitan said. “Even pacifist schools — Catholic schools, for example — cannot refuse military recruitment on campus.”
Reitan said there is an exception allowed for “historically pacifist” school, but it is hard to obtain.
Law said the law schools’ lawsuit is based on the First Amendment. By strictly enforcing the Solomon Amendment, Congress is financially compelling law institutions to convey a message they do not support, she said. In the past, the Supreme Court has ruled that the federal government can refuse to fund a particular activity of which it does not approve, but it cannot refuse to fund an entire organization because of an objection to a single activity, Law said.
“The core of the claim is that (the Solomon Amendment) violates our First Amendment rights, which is the classic type of case to seek a judicial response to,” Law said. “Since this is a complex issue, a legislative campaign would be difficult, because it would be hard to get in to sound-byte mode.”
However not all professors think the suit is an appropriate response. Charles Moskos, an NU professor emeritus in sociology, said he believes that because the law was passed by the legislature, any changes should come through Congress, not the judicial system.
“The law professors should hang their heads in shame for asking the military to disobey the law,” Moskos said.
Moskos helped create the military’s “Don’t ask, don’t tell” policy. He said he believes that elite private schools, the schools which have most violently objected to the Solomon Amendment, should support military recruitment in hopes of fostering change in military attitudes.
“(Students from elite schools are) exactly the kind of students you want in (Reserve Officer Training Corps), students who want to change the attitude about gays in the military,” Moskos said.
