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

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.

Still, whatever its flaws, the decision in F.A.I.R. reminds us of the importance of associations, mediating institutions, and civil society's "third places" in the free-speech landscape. The Court's "expressive association" doctrine and the Boy Scouts case reflect the fact that we express and embrace our ideas by associating with others and that associations, in turn, transmit values and mediate between persons and the state. As the Justices observed in the Boy Scouts case, the freedom of association is "crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular ideas." In other words, associations are about social structure as much as self-expression. They are the hedgerows of civil society. Associations are not only conduits for expression, they are the scaffolding around which civil society is constructed, in which personal freedoms are exercised, in which loyalties are formed and transmitted, and in which individuals flourish.

The Third Circuit's reliance on freedom-of-association doctrines has prompted some to hail the decision as a win for the principle of "subsidiarity," which has an important place in the Catholic social thought tradition. Although the concept is complicated, a workable definition of subsidiarity was provided by Pope Pius XI in the 1931 encyclical, Quadragesimo anno: "Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also is it an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do."

And so, Robert Vischer of St. John's University--who has written extensively and well on the subject--challenges us to embrace the decision in F.A.I.R. as an "essential judicial support for the principle of subsidiarity." In his view, the objecting law schools, "like the Boy Scouts, are functioning as subversive wrenches in the top-down enforcement of contested moral norms," just as they should be. On the other hand, it is our elite law schools and the AALS that have made clear their determination to impose in "top-down" fashion highly "contested moral norms"; indeed, the Third Circuit's ruling makes their task easier. Some of our best schools, for all their inspiring talk about commitments to diversity, pluralism, and toleration, have not shied away from viewpoint discrimination--against, for example, the Christian Legal Society--when their own needs and norms are thought to require it.

Nonetheless, there is an important lesson to be learned from this case, and it is one that very much concerns the implementation of the principle of subsidiarity: With public money come regulatory strings, and with dependence on government funds comes a loss of expressive independence. Accordingly, civil-society associations that hope to challenge the dominant orthodoxy or resist the "top-down enforcement of contested moral norms"--like parochial schools that welcome school-voucher recipients and drug-treatment programs that participate in "faith-based initiatives"--should be careful about coming to depend on government funding. They may find, in the words of a cosponsor of the Solomon Amendment, that "starry-eyed idealism comes at a price."

Richard W. Garnett teaches at the University of Notre Dame Law School.

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