Before Joseph Zengerle joined George Mason University School of Law as a Professor of Homeland Security, and War and Law Studies, he led a successful career as a nonprofit executive and law firm partner when he co-founded a Washington, D.C.-based federal law practice. He served as Assistant Secretary of the United States Air Force (Manpower, Reserve Affairs, and Installations) after he fought in the Vietnam War and earned a Bronze Star Medal. Following his graduation from the United States Military Academy at West Point in 1964, Captain Joseph Zengerle held several posts in the U.S. Army, among them Special Assistant to General William Westmoreland and Unit Commander stationed in Vietnam in 1968.
Considered the ninth highest military award available, the Bronze Star Medal recognizes United States Armed Forces members who display acts of bravery or merit and/or meritorious service. When bestowed upon a soldier for his or her bravery, it represents the fourth-highest combat award an Armed Forces member may receive. A bronze attachment known as the Valor device distinguishes the Bronze Star Medal as earned from combat heroism.
Typically the secretaries of military departments and Homeland Security award the Bronze Star Medal, however they may delegate the task to other officers. Those eligible for the award include members of the United States Army, Navy, Air Force, Marine Corps, or Coast Guard who meet the criteria set after December 6, 1941. Criteria for the Bronze Star include that the military member distinguishes him or herself by serving or displaying heroics in action against a U.S. enemy, while serving alongside friendly foreign forces in a conflict, or while engaged in operations against foreign opposition.
By Joe Zengerle
continued from A Supreme Court Case Concerning Military Recruiters and Law Schools (Part One)
I have researched and taught national security matters at George Mason University since 2002. An important case I followed throughout 2005 and 2006 involved many law schools wanting to ban Judge Advocate General’s (JAG) Corps recruiters from their campuses, since the Department of Defense banned openly gay servicemembers due to the “don’t ask, don’t tell” mandate enacted by Congress. Allowing JAG recruiters on campus, the law schools argued, violated their First Amendment rights by effectively forcing them to participate in what they claimed was unlawful discrimination against some of their students.
My position on the case was based on the Constitutional spending power granted Congress under Article I, which established the right of the U.S. Congress to condition the receipt of appropriated funds on specified conduct. This power has been used to enforce compliance with Title IX provisions, as an example. Indeed, the Solomon Amendment threatens loss of federal funding to institutions that do not allow JAG recruiters campus access. As debate erupted on law school campuses and the matter wound its way to the Supreme Court, law schools were required to comply with the Solomon Amendment or lose federal funds. Notably, other faculty members of George Mason University School of Law joined me in initiating the only amicus curiae brief in favor of enforcing the Solomon Amendment to allow JAG recruiters on law school campuses.
In March 2006, the Supreme Court decided unanimously against the law schools that sought to prohibit JAG recruiters on campus. The decision stated that the JAG recruiters were to be afforded the same rights as any other potential employer coming on campus to interview students. Upon hearing about this ruling, Senate Majority Leader Bill Frist remarked that the decision was of the utmost importance, given America’s need for qualified individuals during time of war. My agreement with that assessment is what led me to energize the brief we submitted to the Supreme Court; at that moment, the JAG Corps faced a critical need for the brightest legal minds. Indeed, the government needed the best legal counsel it could secure, especially as issues surrounding the treatment of detainees came to the forefront.
The Supreme Court offered no comment on the military’s “don’t ask, don’t tell” policy and other gay rights issues, which were not involved. While those issues provided sociological context for the case, the key legal issue involved our nation’s need for highly qualified individuals in time of war and Congress’s power to achieve that goal. The Supreme Court’s decision was not that surprising (except to the other participating law schools) given the high court’s history of deference to DoD personnel policy. Here, that deference was combined with Congress’s powers to spend, and to raise and support armies, which proved determinative.
Outside his role as Executive Director of the Clinic for Legal Assistance to Servicemembers (CLAS) at George Mason University School of Law, Joe Zengerle remains actively involved with other pursuits in his field. In 2005, in the midst of a United States Supreme Court case that galvanized the legal education community, Joe Zengerle initiated the only brief amicus curiae from any law school to endorse the Solomon Amendment, a federal law that restricts government funding to universities that deny access to military recruiters. Produced in collaboration with two other members of the George Mason University School of Law faculty, the brief supported the constitutional validity of JAG (Judge Advocate General’s Corps) recruitment on law school campuses.
The suit originated in late 2003, when an association of 36 law schools and law faculties (Forum for Academic and Institutional Rights, or FAIR) filed a legal challenge to the Solomon Amendment in the U.S. District Court for the District of New Jersey. At the time, several law schools refused to allow campus JAG recruitment on the grounds that the 1993 “Don’t Ask, Don’t Tell” policy violated the nondiscrimination provisions of the Association of American Law Schools. FAIR claimed that the Solomon Amendment, which was passed in response to this objection, violated First Amendment freedoms of speech and association.
After the U.S. Court of Appeals for the Third Circuit ruled in favor of FAIR, the case went before the Supreme Court in 2005. By then, Congress had amended the law explicitly to require schools to grant military recruiters the same access to campus as any other employer. Despite a series of briefs from other academic institutions, which argued against the constitutionality of the law, the Supreme Court ruled unanimously to uphold the Solomon Amendment in March 2006.