Universities can bar military recruiters from campus without risking the loss of federal funds, according to a federal court that ruled in favor of a GW Law School-affiliated group Monday.
Last year, the Forum for Academic and Institutional Rights, an organization GW’s Law School joined in October 2003, sued the Defense Department because it requires educational institutions to give military recruiting officers access to campuses or risk losing some federal funds. FAIR argued that the Pentagon forces universities to contradict their anti-discrimination policies because of the military’s “don’t ask, don’t tell” policy, which dismisses soldiers if they announce that they are gay.
While the Law School is part of GW, most administrators in other departments did not publicly voice their support for FAIR. Officials at GW, which adopted a policy barring sexual orientation discrimination in 1992, have not yet said whether they will seek to throw military recruiters off campus.
News reports indicated that most schools are still reviewing the court decision, but Harvard Law School took little time to act. The school’s law dean announced Tuesday that it would ban military recruiters, reinstituting a policy that was discontinued two years ago when a law called the Solomon Amendment threatened to take away federal funding.
Law professor Roger Schechter, the GW Law School’s FAIR coordinator, said the case is unique because it involves the military.
“The tradition is to provide Congress with extreme latitude (with regard to military legislation),” he said. The dissenting opinion of the court’s 2-1 vote stated that the majority did not give adequate weight to the fact that the military is involved.
“If you could sum up his dissension in one sentence it would be, ‘It’s the Army for God’s sake,'” Schechter said.
Sharon Frase, an attorney with Heller Ehrman, the law firm that argued FAIR’s case free of charge, said the military should not seek to control the actions of private organizations.
“It’s just that the military often has compelling justifications for the challenged infringement on speech, and the courts avoid telling the military how to conduct its own internal affairs,” she said. “The military is imposing its will on private organizations, co-opting them to help the military disseminate its recruiting message. The usual deference is not warranted.”
GW is one of only five schools that have made their FAIR membership publicly known. New York University’s law school is another public member. FAIR boasts approximately 900 individual law faculty members in addition to the 25 law schools. Frase applauded GW for “coming out” publicly.
“The benefit of open membership is that the law school can publicly reassure its students, faculty and all members of the community that it is fighting for those principles, but all of the members of FAIR have contributed heroically to this effort,” Frase said.
Most schools have decided not to publicize their membership because they fear federal retaliation, she said. But Schechter said he does not believe the government will act out against GW.
“I think it would be counterproductive for them to do that,” he said. He explained that the government needs talented employees, and they would be limiting its resources by excluding GW students.
Monday’s decision is not final, said Schechter, who noted that the Defense Department could still seek to overturn the ruling. Pentagon officials could not be reached for comment for this story. Schechter said he was excited about the victory but realized the case may not be over.
He said, “There are very few things in the legal and political world that are absolutely final.”
-Brian Costa contributed to this report.