Law professors vote to sue Pentagon

GW Law School professors voted Friday to join a group of law schools suing the U.S. Defense Department for allegedly discriminating against gays.

If Law School Dean Michael Young approves the decision, the school will become a member of a coalition of law schools that claims the Solomon Amendment, which withholds federal funding from universities that do not allow the military to recruit on campus, is unconstitutional.

GW receives millions of dollars in federal funding each year in the form of financial aid and research grants. The University has not taken a position on the issue and would not be affected if the law school decided to join the coalition.

The underlying reason for the lawsuit is the Pentagon’s “don’t ask, don’t tell” policy, which stipulates that gay members of the military are subject to dismissal if they make their sexual orientation known.

The coalition, the Forum for Academic and Institutional Rights, said the amendment effectively forces universities to contravene its own non-discrimination policies by letting the military onto its campus. In 1992, GW adopted a University-wide policy banning discrimination toward gays.

“We believe the Solomon Amendment is a violation of our academic freedom,” said Forum for Academic and Institutional Rights President Kent Greenfield, a law professor at Boston College.

The forum filed suit against the Defense Department in U.S. District Court in New Jersey in September and is awaiting a judge’s decision on whether to temporarily stay the Solomon Amendment until a final ruling is made.

If it joined the coalition, the GW Law School would be one of the few universities to publicly acknowledge its membership. Of its 14 present members, only the Chicago-Kent College of Law, Whittier College and Golden Gate and New York universities have asserted that they are members, Greenfield said.

He said some members have chosen to remain confidential because they fear financial retaliation from the Pentagon. Officials from the Defense Department’s General Counsel Office were unavailable for comment.

After a two-hour debate Friday, a majority of the approximately 40 professors present recommended to Dean Young that GW Law School become a member of FAIR. Professors voted by secret ballot, and the vote’s tally was not made public.

Young was unavailable for comment after the vote and did not indicate whether he would affirm the faculty’s decision. But in a brief speech during the debate, Young said joining the forum would be “irresponsible” and “very problematic.”

Associate Professor Joan Schaffner, who introduced the resolution to join the coalition, said she hoped Young would affirm the vote despite reservations.

“I believe he will follow the majority of the wishes of the faculty,” Schaffner said in an interview after the vote.

During Friday’s debate, professors voiced support for and raised concerns about joining.

Calling the Solomon Amendment a “financial gun to our head,” Professor Roger Schechter passionately implored his colleagues to take a stand on the “greatest civil rights struggle of our time” and vote to join the forum.

While agreeing that the amendment violated universities’ academic freedom, professor John Banzhaf said FAIR has little chance of winning its case and suggested that the GW Law School should sue the federal government on its own.

“I think it’s a meaningless, feel-good, ineffectual gesture,” Banzhaf said of joining the coalition.

But other professors disagreed.

“I don’t think it’s ‘ineffectual’ to be symbolic,” professor Jonathan Turley said.

Others raised questions about the group because of its secrecy and suggested alternatives to suing the Pentagon.

“I haven’t heard of good reason yet why we should do it,” said professor John Duffy, who said the law school should adopt a resolution condemning the Solomon Amendment but abstain from becoming a member of the group.

While acknowledging that the coalition is an “imperfect vehicle,” Schechter, the most outspoken proponent of joining, said, “We would be foolish to make the perfect the enemy of the good.”

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