Some of America's top law schools are heading to court themselves. Their target: a Pentagon policy requiring them to allow military recruiters on campus. At issue is the military's "don't ask, don't tell" policy towards gays and whether the government should be able to force schools to disseminate a message they dislike.
Separate suits filed by law schools, professors, and students this fall charge the Pentagon with forcing them to violate anti-discrimination rules by demanding access to campuses. Those schools that refuse risk losing hundreds of millions of dollars in federal funding.
Such big-name law schools as Yale and the University of Pennsylvania are on the front lines against the "don't ask, don't tell" edict. But many others have opted to stay on the sidelines - skittish about losing funding or appearing antimilitary during wartime - showing the limits of university protest today.
The controversy has been brewing for a decade at law schools, which long ago adopted stricter antidiscrimination rules than the universities that house them. As a result, when the military codified its policy restricting openly gay service members during the Clinton administration, law schools began limiting recruiters' access to their buildings and career-services offices.
For years, the Pentagon threatened to cut off funds to noncomplying law schools - including financial aid. The standoff grew testier after President Bush took office. The Defense Department mailed law schools a letter demanding the same access provided to other employers.
Combined with a threat to cut off funding for the entire university - not just the law school - almost every school relented. Those continuing to bar access are independent law schools, like William Mitchell College of Law in St. Paul, Minn., which receive no federal funds. "If the military recruiters will sign the nondiscrimination statement we require every employer to sign, they're welcome," says William Mitchell's dean, Harry Haynsworth.
This fall, military recruiters interviewed law students on at least two dozen campuses. The Defense Department says it needs campus recruiting to hire some of the 300 new attorneys needed to man what's essentially one of the nation's largest law firms - inside the Pentagon.
In requiring equal access to law schools, the Defense Department says it's following federal law. "The actions are based entirely on procedures set forth in Federal statutes ... no more, no less," says Pentagon spokesman Jim Turner.
Some military lawyers view the backlash as yet another sign that America's campuses are hostile to those in uniform. "Many at America's elite law schools have an antimilitary attitude," says Lt. Col Raymond Swenson, a retired Air Force attorney. "It's something they acquired as college students back during the Vietnam War and have not grown out of."
But law schools argue that the military is coercing them into expressing a view they disagree with. "The government can't say we will give money to universities that [only] agree on 'don't ask, don't tell,'" says Kent Greenfield, a Boston College law professor who helped organize the Forum for Academic and Institutional Rights (FAIR), a coalition of law schools that filed the first suit in September.
Yale law student Adam Sofen says the issue is far more personal for him. His grandfather served as a naval aviator for 30 years; his brother graduated from the Naval Academy just this year. "That makes it all the more painful to me that the Armed Services want nothing to do with me as a gay student," says Mr. Sofen, who helped organize the Yale student suit filed in Federal court in Connecticut on Oct. 30.
It's difficult to gauge how many law schools are participating in the suit since most signed on anonymously. Organizers won't even say how many schools are involved beyond the four that agreed to attach their names: New York University, Golden Gate University School of Law in San Francisco, Whittier Law School in Costa Mesa, Calif., and the Chicago-Kent College of Law. Similar suits have also been filed by professors and students at Yale and the University of Pennsylvania. Half the Harvard Law School faculty has signed a letter urging university president Lawrence Summers to join as well.
The anonymity surprises many who have signed on publicly. "I'm completely at a loss to understand why schools weren't coming forward with pride to put their names on [this]," says Peter Keane, Golden Gate's dean. "We're supposed to teach our students to go fight for the Bill of Rights."
But Mr. Greenfield says he understands the reticence. "Law schools are understandably nervous that they would bear some public-relations cost if they sued the military in a time of war."