DoD withholds funds from three law schools

The Pentagon has targeted three small law schools it says are violating a law requiring campus access for military recruiters and has classified them as ineligible for federal funding, even as it has declined to pursue the high-profile law schools where the debate over the constitutionality of banning such recruiters has been centered.

With the Yale Law School at loggerheads with the U.S. Department of Defense as both await a Supreme Court ruling on the issue, a federal court injunction protects Yale from losing its $350 million in federal funding for banning recruiters from the military’s Judge Advocate General program. But Harvard and other leading law schools are not protected by the injunction, leading some lawyers involved in the issue to question the Pentagon’s motives in enforcing the law against the small schools, which have relatively little money to lose.

The Defense Department last week said that New York Law School is ineligible for federal funding because of the difficulties JAG recruiters have encountered trying to contact students on the school’s campus, located in Manhattan. Military officials have also deemed Vermont Law School in South Royalton, Vt., and William Mitchell College of Law in St. Paul, Minn., ineligible for federal funds.

The Pentagon is withholding most available federal funding from the three schools on the basis of the Solomon Amendment, which denies most federal grants and contracts to colleges and universities that ban military recruiters from campus. The law counters efforts by at least 24 law schools to ban recruiters in protest of the military’s “don’t ask, don’t tell” policy on homosexuality, which violates the universities’ nondiscrimination recruitment policies.

Kent Greenfield, a Boston College law professor and president of the Forum for Academic and Institutional Rights, a mostly anonymous coalition of law schools, said he thinks the Pentagon’s enforcement of the law against the smaller schools may be a publicity stunt.

“They can pick off the Vermonts and William Mitchells of the world, and nobody will make a fuss,” Greenfield told Inside Higher Ed, an online higher education news journal. “But I think the military knows better than to pick that fight [with Harvard].”

Pentagon spokeswoman Lt. Col. Ellen Krenke said the Defense Department is not selectively enforcing the Solomon Amendment in order to avoid legal skirmishes with big-name institutions. Rather, she said, the government is withholding funding from institutions where military recruiters cannot gain access to students “equal in scope and quality to that of any other employer.” The three small law schools have been targeted, she said, because they have also been unwilling to declare in writing that they do not have a policy or practice of denying the military access to campus.

FAIR has filed a lawsuit against the Defense Department and will begin oral arguments before the Supreme Court Dec. 5. Nearly 50 Yale law professors have filed an amicus brief on behalf of FAIR. The high court’s ruling could affect a separate suit brought on by a group of Yale law professors that is now pending, said Robert Burt, a Yale law professor and lead plaintiff in that case.

Harvard Law School officials did not return repeated requests for comment on their policy on allowing military recruiters on campus. Beth Tossell, a Harvard law student who leads a group of gay law students at the school, declined to comment on her school’s policy toward JAG recruiters, but wrote in an e-mail she expects the school to release a statement today.

New York Law School officials found out earlier this month from the Pentagon that federal funding would be withheld if they did not allow recruiters back on their campus. But the newly imposed sanctions will have little effect on any of the school’s current funding, said Carol Buckler ’78, who is an associate dean at the school.

Although the enforcement of the amendment may affect future funding the school seeks, the Defense Department has not supplied officials with any information on how funding restrictions would be implemented, Buckler said.

Fadi Hanna LAW ’06, who co-chairs OutLaws, an alliance of gay law students at Yale, said he thinks the timing of the Pentagon’s sanctions against the three small schools could have been designed to prove the military is willing to enforce the law leading up to the Supreme Court hearings later this year.

Hanna said he thinks Yale, Harvard and other universities that receive significant federal funding would immediately allow recruiters on their campuses if they believed there was a chance they might lose out on federal government grants.

“It would be interesting to think about whether this is for some sort of public relations effect to say, ‘Hey, we’ve actually used the amendment to withhold federal funding. It’s not just a threat,’” Hanna said.

The Solomon Amendment became a heated political issue following the Sept. 11, 2001 terrorist attacks, when the Pentagon threatened to enforce the law more strictly, citing the need for a larger and more qualified pool of JAG lawyers.

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