Law schools & the military: don't ask, don't tell, don't recruit

Commonweal, Jan 14, 2005 by Richard W. Garnett

The First Amendment's protection of "freedom of speech" is about more than just speech. Courts and commentators agree, for example, that the freedom to speak includes a freedom not to speak, and that just as the government may not punish us for professing our love of country, it may not require us to recite the Pledge of Allegiance. In addition, the Constitution protects not only the sermons of a solitary activist, standing on a corner soapbox. It safeguards also our right to amplify and enrich our individual expression by associating with others, and thereby constrains government's power to revise or otherwise interfere with the rights of groups to express collective views.

These variations on the First Amendment's right of free speech were on display and in dispute in Forum for Academic and Institutional Rights [F.A.I.R.] v. Rumsfeld, a recent court decision involving military recruiting at law schools, sexual-orientation discrimination, and hundreds of millions of dollars in federal funds.

The American Association of Law Schools (AALS), like many of its members, disapproves of the armed forces' "don't ask, don't tell" policy with respect to gays and lesbians. After some schools elected (or were required by the AALS) to express this disapproval by denying military recruiters access to their career-services facilities, Congress enacted the so-called Solomon Amendment. That law denies federal funds to universities and colleges that exclude or discriminate against military recruiters. As Representative Gerald Solomon (RNY) himself put it a decade ago, "if [universities and colleges] do not like the armed forces ... that's fine.... But do not expect federal dollars to support your interference with our recruiters."

F.A.I.R. is a coalition of law schools and professors which filed a lawsuit contending that the Solomon Amendment unconstitutionally requires the schools to facilitate, endorse, and "speak" in support of the military's antigay policy, and therefore burdens their freedom of "expressive association." By a 2-1 vote, a panel of the federal court of appeals for the Third Circuit agreed.

Like the objecting law schools, the majority relied heavily on the Supreme Court's recent and controversial Boy Scouts decision. There, the justices had narrowly concluded that the Scouts could not be required by New Jersey's antidiscrimination laws to allow an openly gay Eagle Scout to continue serving as a scoutmaster. Such a requirement, the Court determined, would violate the Scouts' First Amendment rights by interfering with the group's selection process and the content of its own expression or message.

The same thing is true, the Third Circuit concluded, of the Solomon Amendment. As Judge Thomas Ambro put it, "just as the Boy Scouts believed that 'homosexual conduct is inconsistent with the Scout Oath,' the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness." And, just as the Scouts claimed that its goal was to "inculcate [youth] with the Boy Scouts' values," the law schools also state that they aim to "inculcate their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination challenge." In sum, the Solomon Amendment "affects law schools' ability to express their view-point ... that discrimination on the basis of sexual orientation is wrong" by compelling them to send the opposite message.

The Solomon Amendment and the "don't ask, don't tell" policy raise difficult questions of both policy and fairness. One can acknowledge that the military's policy excludes from the armed forces--and causes pain to--many able and committed soldiers, yet also believe that decisions about combat effectiveness are probably better made by the Pentagon than by law faculties. In addition, those who oppose the military's policy might do well to consider the concern expressed by Commonweal contributor E. J. Dionne Jr. that the law schools' own exclusionary practices could have the undesirable social effect of exacerbating the separation of elite and liberal society from the military. After all, as Dionne points out, "if liberals stay out of the military, their chances of influencing the military culture are close to zero." To this, one might add the complementary suggestion that we should also worry about the elitist parochialism of many of our best schools, which are often unreflectively hostile toward the armed forces, and home all too commonly to crude stereotypes of soldiers.

The suggested analogy with the Boy Scouts case is strained, though. The Solomon Amendment does not, in fact, require objecting law schools and professors to endorse the military's exclusionary practices or to disavow their own stated commitment to full equality for gays and lesbians. The New Jersey law at issue in the Boy Scouts case would have required the Scouts to retain someone to whom the group objected as a leader and spokesperson, but Congress is not demanding that Yale Law School make Donald Rumsfeld its dean. And while the schools claimed that the "presence of military recruiters would ... force the law schools to send a message ... that the law schools 'accept' employment discrimination 'as a legitimate form of behavior,'" the mere short-term presence of recruiters--particularly when access is required by federal law--communicates no such thing.