By Joe Zengerle
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.