Don't Ask, Don't Tell, Don't Fight

Even before the military started shelling, Washington University hoisted the white flag

The AALS, along with other higher-ed groups, has sent the DOD its objections to the new regulation, detailing why the group believes the regulation is illegal. It also asks that the rule be withdrawn. The memo was sent March 13, and the military has shown no interest in backing off from its threats.

At Wash. U., the issue has been discussed extensively among faculty, staff and students. A lot of hand-wringing and agonizing has gone on. But, again, there hasn't been much anger. Even Outlaw, a group of gay and lesbian law students, which opposes caving in to the military, seems to be engaged in a battle over technicalities. The group sent a memo to faculty, reading more like a legal brief than a letter of protest, that makes arguments for why the DOD rule violates the federal Administrative Procedures Act (APA). Perhaps if the JAG recruiter actually showed up on campus, Outlaw might live up to its name.

Law, who has been invited to meet with the Wash. U. law-school faculty and students in January regarding this matter, says universities would have a pretty strong court case, because the DOD rule violates the APA, which requires public hearings and input before such rules are issued, and because the rule essentially goes far beyond what Congress intended with the Solomon Amendment and Solomon II.

Chancellor Mark Wrighton finds his own decision "unsettling."
Joe Angeles
Chancellor Mark Wrighton finds his own decision "unsettling."

Would Wash. U. run the risk of losing federal money by challenging the law in court? "I think there is no risk to any university in being the lead plaintiff in a lawsuit, because the day you file the suit, you go in and get a preliminary injunction telling the military they can't retaliate against you by withdrawing funds until the suit's been tried -- zero risk of taking affirmative legal action, because the lawsuit can protect you," Law says.

Beyond the "procedural" issue, she says, "I think it's a profound academic-freedom issue, but it would not be recognized as such in a court of law, because they would just say, "You don't have to take the money. The courts have been extremely reluctant to see violation when it is conditioned on the availability of funds."

As for why the military is hell-bent on using campus placement offices when it has always been able to contact students and invite them to apply and be interviewed at campus ROTC offices, Law says she thinks some individuals at the Pentagon and in the Senate "see this as symbolically big and see this as wrong for the pointy-headed liberal academics to take government money and then impose their own view of cultural morality on the military. That's all."

A Wash. U. spokeswoman says the military JAG Corps has generally been recruiting five or fewer students each year from a class of about 200. Martha Rudd, an Army spokeswoman, says not only that the military does not believe it is infringing on academic freedom but that it believes the universities have been denying law students' rights -- to the choice of a career in the military.

Matt Coles, of New York, is not happy about the universities' giving up without a fight. Coles, the director of the American Civil Liberties Union's lesbian- and gay-rights project, says the military rule can be challenged legally because of the APA violation, "but they can fix that," meaning the military can simply go through the motions of a public-comment period and reissue the rule.

Like Law, Coles thinks that taking the issue of coercion to court would probably fail because, theoretically, the universities can live without the federal money. Courts have long maintained that government can withhold funds to state, local or private entities if they don't comply with federal rules. In the 1970s, the feds told the states they needed to comply with energy policy and institute a 55 mph speed limit and that if they didn't, they would lose billions in highway funds. "Can the government use its pocketbook to bully state, local and even private authorities this way? I think the answer under existing law is "Yes, it can,'" says Coles. "What they can't do is effectively give you what appears to be a choice that is no choice at all. If the alternative of turning down the money isn't realistic, then that would cross the line -- it amounts to coercion.

"But for a university to say, "Gee, we're used to taking a lot of money from the federal government,' I don't think it amounts to coercion.

"I do think, however, what the federal government has done here is, it has said that schools have to accept not only recruiters but ROTC programs," continues Coles. "And that means that they have to accredit certain members of the U.S. military as faculty and put certain courses into their curriculum. And the recruiting program as well, which tells schools how they can run their placement offices -- I think those raise serious questions of academic freedom under the First Amendment."

These issues also raise serious questions about universities and their relationship with the DOD. When you accept $300 million a year from the feds, what else do you keep quiet about? What other troubling questions never get asked?

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