Guest column: The legality of ‘don’t ask, don’t tell’ policy

Contrary to the impression created by The Hatchet’s article about GW’s anti-discrimination policy (“ROTC, GW policies differ,” Nov. 21, p. 1), federal law does not necessarily require GW to cooperate with the military’s on-campus recruiting efforts. Moreover, such cooperation appears to be illegal under the D.C. Human Rights Act.

However, to date, no advocate for homosexual rights has been willing to challenge the policy either in court (which would require a lawyer from one of the many gay-rights organizations in town) or before the Office of Human Rights (which only requires filling out a simple complaint form for the Office to then investigate and prosecute on its own).

Federal law that provides federal funding may be terminated to any institution which “has a policy or practice that either prohibits or in effect prevents (the military) from gaining entry to campuses or access to students … on campuses, for purposes of military recruiting” (10 USCS  983). Thus, if the University actually barred military recruiters from campus (as a few schools do), or otherwise denied them any access to students, funding for GW might be threatened (although a warning and hearing would first be required).

The operative words are “prohibits or in effect prevents access.” Congress deliberately chose not to use words like “impede,” “obstruct,” “hinder,” “thwart,” “inhibit,” “frustrate,” etc.; i.e., words which might arguably prohibit actions by a university which simply make it more difficult for the military to recruit.

The statute certainly does not require or even suggest that universities must treat or accommodate military recruiters in substantially the same way as other nondiscriminatory recruiters or that a university must allow military recruiters to use its facilities to solicit or collect resumes, schedule appointments, conduct interviews, etc. In short, unless a university prohibits or effectively prevents access by military recruiters, it is in compliance with federal law.

This is very important because the D.C. Human Rights Act provides that “it shall be an unlawful discriminatory practice for any person to aid, abet, invite … the doing of any of the acts forbidden under the provisions of this act,” including discrimination on the basis of sexual orientation ( 1-2526). The law defines aiding and abetting so broadly that it “comprehends all assistance rendered by words, acts, encouragement, support or presence, actual or constructive, to render assistance if necessary” (Black’s Law Dictionary).

Therefore, it appears that a reasonable construction of “aid or abet” would prohibit GW or any unit within it from running notices, collecting resumes of applicants, providing and scheduling interview rooms, etc. for any employer which did not treat all applicants equally, regardless of sex, sexual orientation, etc. Thus GW would be acting illegally if it cooperated with an employer which discriminated on the basis of sex or sexual orientation even if such discrimination was not prohibited by the country in which it was located, as well as with an employer like the U.S. military which treats heterosexuals and homosexuals differently.

This is not simply a theoretical argument since, in at least two situations, I was able to force entities within the District to stop cooperating with discriminatory practices that may have been legal (because of the law where they occurred).

In one, I argued that a D.C. newspaper which published ads for a Virginia club which had a “Ladies Night” was “aiding and abetting” sex discrimination. The newspaper agreed to stop running the ads. In another situation I filed a complaint against a dance class in Maryland which allegedly discriminated on the basis of race and religion. I argued that the parents of children attending the classes who lived in the District “aided and abetted” the discrimination by “steering” new recruits to the classes and by serving on various boards, etc. The dance school was forced to stop discriminating.

Thus any time activists wish to do more to protest GW’s active cooperation with military recruiters than ineffectual activities like issuing statements, holding conferences, etc., they have potentially very powerful weapons – the D.C. Human Rights Act and the Office of Human Rights – on their side.

Incidentally, the same legal actions could be brought against any university in the District, and a decision holding that it may not lawfully cooperate with military recruiters or others who discriminate (even lawfully) would likewise affect all area universities.

-The writer is a GW professor of public interest law.

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