Two years ago, Georgetown Law Center students and faculty stormed past military recruiters at the nearby Washington Court Hotel and marched to Capitol Hill, protesting the recruitment practices of the U.S. armed forces.

This past week, their opposition to the military’s on-campus presence and “Don’t Ask, Don’t Tell” policy was vindicated. But although the U.S. Court of Appeals’ decision was hard-won and long-awaited, it signifies simply the beginning of another, much longer struggle for the gay rights movement.

History

The battle over the U.S. military’s right to recruit on law school campuses began quietly enough.

In 1990, the American Association of Law Schools, an association of 166 universities including Georgetown, voted to include sexual orientation as part of its non-discrimination policy.

To enforce Bylaw 6-4, as the policy is known, the AALS enacted a provision that made employers provide written assurance that they did not violate any of the policy’s non-discrimination provisions before they could recruit on campus.

At the time, the U.S. military banned gays from service completely. But in 1993, after a protracted political firestorm, the U.S. Congress passed what became known as the “Don’t Ask, Don’t Tell” policy, a product of compromise between conservatives who wanted to keep the ban, and President Bill Clinton (SFS ’68), who wanted to repeal it. The half-and-half piece of legislation stipulated that gays could serve in the military, but only if they never revealed their sexual orientation.

The AALS, however, viewed this as a ban on gays in practice and maintained that the military, like other discriminatory employers, could not recruit on law school campuses.

Congress responded in 1995 with the first version of the Solomon Amendment, which denied universities that prohibited military recruiters from receiving Department of Justice funds.

In the ensuing years, the measure was expanded to prohibit funds from the Department of Education, the Department of Labor and the Department of Health and Human Services. The newest version, issued in 2000, cut off federal funds to the entire university, not just its law school, if military recruiters were banned on campus.

This was the version of the Solomon Amendment that law school students and faculty had been protesting so vociferously over the past few years. In 2003, the Forum for Academic and Institutional Rights, a coalition of about 24 law schools, brought a suit against Defense Secretary Donald Rumsfeld, seeking to overturn the amendment on the grounds that it violated schools’ First Amendment rights to free speech.

“By facilitating military recruiting on campus, [the amendment] was basically forcing us to say that we agreed with their recruiting methods,” explained Chai Feldblum, a professor at GULC, who coordinated much of the university’s protest action. “We were being forced to `speak.'”

Consequences

The counterarguments of the U.S. government, however pertinent to constitutionality, were made in the growing shadow of the conflict in Iraq.

Georgetown allowed the armed forces to mail information to students, and even to conduct interviews with interested students. Other institutions often permitted similar, limited recruitment.

But the government argued that national interest overrode law schools’ discrimination policies because of the urgency of recruiting soldiers to serve in Iraq. As Feldblum explained, individuals’ rights can legally be trumped by government interest only under two conditions – that the government has a “compelling” interest, and that the government’s actions are “narrowly tailored” to serve that interest.

“No one disputes that the government has a compelling interest in recruitment,” Feldblum stated. But, in her view – and the view of the U.S. Court of Appeals – the military failed to prove that its physical presence on campus was narrowly tailored to serving its recruitment efforts.

Military officials have strongly defended the need for recruiters to have access to students, particularly at law schools. It is critical, they claim, for the military to be able to sustain an adequate number of lawyers in uniform in order to keep the armed forces’ judicial system operational, efficient, and just.

Pentagon officials have also said that, in a time of increasing worldwide conflict and low recruitment levels, national security is jeopardized by restrictions placed on military recruitment.

Now that recruiting season is over, the law center is reassessing its policy towards the military’s recruitment capabilities, and should issue a decision next year as to the level of access it will allow.

The Future

The Solomon Amendment case is closely related to the 2000 Supreme Court decision that the Boy Scouts of America could prohibit gays from becoming members on the grounds of free speech provided by the First Amendment. These decisions have indicated a judicial stance supporting the right of institutions – whether public or privately funded – to enforce their own policies as they see fit.

Judges upheld this principle even though the two victors in the cases argued for opposing rights: one, to bar gays from participating in its organization, and the other, to bar those who would bar gays from participating in its organization. As Feldblum sees it, however, this tendency to uphold free speech will affirm progress towards gay rights more than prevent it.

“The First Amendment has always been a good friend of the gay rights movement,” she noted. “I always felt we had a very strong case in terms of that.”

Still, though she says she was “delighted” with the court’s decision, she recognizes that it was one battle in a very long war.

“While this victory is very good, it should not blind our eyes to the fact that there is an even greater injustice out there,” she said, referring to the military’s refusal to allow gays to openly serve in the military. “This case does not help at all in fighting that underlying injustice.”