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Monday, August 13, 2007

A New Twist on the Solomon Amendment

Joan Schaffner of GWU Law School has a paper up on SSRN that raises a novel twist on the Solomon Amendment and the issues surrounding it.  Schaffner asks, regardless of whether a law school is obliged to provide equal access to military recruiters in the on-campus recruiting process, are law school student organizations bound by the same rules, and can law schools impose any restrictions on those student organizations if they invite military recruiters to a student event?  I'll let Schaffner provide some of the background:

The National Security Law Association (NSLA) hosted a program on employment opportunities in the national security law area -- essentially a career fair -- at GW. . . . Several employers were invited to attend the event, including two military employers . . . . The NSLA advertised the event but failed to include the [school-]required disclaimer for the military recruiters that informs attendees that these employers discriminate on the basis of sexual orientation in violation of the GW nondiscrimination policy. . . . The GW Lambda Law group . . . demanded that the military be uninvited or, at least, that all materials be replaced with those including the disclaimer.  The NSLA refused.

Schaffner concludes that the school here, even if it were not a private actor, should have "require[d] that all official GW student organizations follow the rules and regulations governing the institution that implement the GW nondiscrimination policy." 

My own analysis of the current state of the law is somewhat different than Schaffner's; in particular, I think she tends to assume too quickly that the speech interests of a student organization in these circumstances are on all fours with those of a law school hosting a similar event.  Normatively, while I have taken the view that a university ought to be free to oust military recruiters (which is not the same thing as saying it should do so), I find it difficult to square the recommendation she makes for GW with that school's broader commitment to student free speech; and I am concerned about the implications of Schaffner's argument for other student organizations, particularly religious ones.  Regardless, Schaffner has offered up a wonderful, real-world twist on the issues raised by the Solomon Amendment. 

Posted by Paul Horwitz on August 13, 2007 at 04:47 PM in Article Spotlight | Permalink


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