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Military Recruitment

Via Julie Saltman I see that the 3rd Circuit has struck down the Solomon Amendment that would have prohibited law schools that receive federal money from barring military recruiters from campus on the grounds that the armed forces discriminate against gays and lesbians. I won't try and speak to the legal issues here, but I don't think the law schools' policy in this regard makes much sense. Faced with an issue like this, you need to look at two questions. First, is this an effective method of bringing an end to the objectionable policy? Second, if not does it preserve some important point of principle in a "clean hands" sort of way?

On the first question, I think it's clear that the answer is no. Whatever hassles this may cause for the military are pretty trivial in the scheme of things. What's more, there's every reason to believe that this policy is going to get reversed in the pretty near future irrespective of the policies of elite academic institutions, probably the next time a Democrat gets into the White House. It's hard to imagine the stance of Harvard Law School (or whomever else) is going to move the ticking clock on this topic one minute in either direction.

On the second question, I think that again the answer is "no." The clean hands move would be to refuse federal funding. It's a federal policy, set by civilian elected officials, after all. More to the point, this kind of clean hands thinking is odd for, of all places, law schools. A huge proportion of the firms recruiting graduates of top law schools are asking their associates to engage in defenses of morally questionable behavior, especially from a progressive point of view. The viability of the whole legal enterprise is pretty much founded on the premise that everyone -- and everyone's cause -- deserves quality legal advice, irrespective of what they're trying to do. Would a law school refuse to allow a firm to recruit if one of the things it did was argue that various pieces of non-discrimination legislation are unconstitutional? I doubt it. Do they bar recruitment by all employers who've failed to adopt gay-friendly employment policies? Also seems doubtful. The military is wrong on the merits here, but they seem to be being singled out among a vast cast of wrong-on-the-merits employers. Meanwhile, the schools want to get cash from the very same federal government that set the wrong-on-the-merits policy. I'm not exactly up-in-arms about all this, but the liberal view here seems pretty incoherent and doesn't do much of anything to substantively advance gay rights.

November 30, 2004 | Permalink

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Does law school's banning military recruiters really help the gay movement? Matthew Yglesias seems to think no. I agree that taking a high road with the military seems to be an odd stance for law schools, but it is a [Read More]

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    Tracked on Dec 3, 2004 10:30:31 AM

    Comments

    From what I recall though (back when I was in law school starting in 96), was that the law schools themselves (at least mine) would have been willing to give up their own federal funding. However, the problem was that the government, at the time, started threatening to pull things like Pell Grants and the insurance associated with Stafford Loans from individual students, and the school (a very expensive, ivy-league one) wasn't willing to force large numbers of students to drop out because they could no longer get funding.

    Posted by: sam | Nov 30, 2004 5:10:58 PM

    I recall the reason the affirmative action cases would affect public and private schools was b/c of federal funding--a school that engaged in affirmative action admissions policies after such were found unconstitutional as applied to the state would lose it's federal funding, and therefore would almost invariably follow the new no-aff-action policy.

    Isn't that the same as this? Am I missing something, Sam? I think these schools really need their federal funding?

    then again, maybe it's all tied up in the stafford loan/pell grant issue, in which case we're arguing the same point

    Posted by: Goldberg | Nov 30, 2004 5:29:17 PM

    Well, I'm wicked proud of those who clogged up the military's interviews at On-Campus Recruiting here at Penn Law--people who had no intention whatsoever of taking the job, and who used their time to advise the interviewer that they might have an easier time finding great lawyers willing to work for peanuts if they stopped being jackasses.

    Your utilitarian logic notwithstanding, the whole protest was intensely satisfying to watch.

    Posted by: Matt Davis | Nov 30, 2004 5:29:52 PM

    A huge proportion of the firms recruiting graduates of top law schools are asking their associates to engage in defenses of morally questionable behavior, especially from a progressive point of view.

    But here, Matt, you conflate two things: The lawyer's duty to a client, and the (non-existent) duty to tolerate morally questionable behavior from non-clients. Lawyers are free to agitate for social change where that agitation is not a conflict of interest.

    Posted by: Matt Davis | Nov 30, 2004 5:33:58 PM

    The law schools do apply the ban on campus admissions to other employers who don't have gay friendly employment policies (which is a really nice way of saying employers who refuse to hire anyone who is openly gay). Their position on the military is consistent with their overall position of refusing access to employers who don't adhere to the schools general anti-discrimination policy. So the military is not being singled out. I think that changes the analysis at least some. Not sure whether or not I think the Federal Government should be able to attach this kind of string to its general funding -- but I agree with the policy in principle

    Posted by: Tom | Nov 30, 2004 5:34:37 PM

    Actually, the law schools have policies that say on-campus recruiters may not discriminate on the basis of sex, race, religion, etc., etc., and sexual orientation. This became an issue because the US military has an explicit policy that discriminates on sexual orientation but wanted to come onto campus and recruit anyway.

    Posted by: halle | Nov 30, 2004 5:37:30 PM

    sorry, clarification, I mean I agree with the school's policy in general - You shouldn't have to allow bigots to recruit on your campus

    Posted by: Tom | Nov 30, 2004 5:40:55 PM

    Well, I'm wicked proud of those who clogged up the military's interviews at On-Campus Recruiting here at Penn Law--people who had no intention whatsoever of taking the job, and who used their time to advise the interviewer that they might have an easier time finding great lawyers willing to work for peanuts if they stopped being jackasses.

    It's not the JAG lawyers who set the policy, a lot (if not most) of whom do not agree with it. It's those same lawyers who may be defending someone accused of violating the policy. It's one thing to show up and protest the presence of the military on campus. It's another to sign up for job interviews to harangue the interviewer, and preventing someone genuinely interested in the job from trying to get it.

    Posted by: Ugh | Nov 30, 2004 5:45:16 PM

    Actually, up until about 2001, most law schools did forego federal funding because they provided limited or no access to military recruiting. At that time, the government policy was changed (I think it was through an act of Congress) so that a law school's actions would put at risk not only its own funding, but that of the entire university as well. For any university with a medical or research science division, this was unacceptable, so it was no longer possible for law schools, as individual units, to take the morally correct stand without dragging down their affiliated schools with them. So, the suit was not brought because the law schools did not have the courage of their convictions, but because the government was going to impose massively out-sized penalties on affiliated units if they adhered to their non-discrimination policies.
    Also, Matt, likening the military's ban on homosexuals to a private employer that may not have "gay-friendly" policies is wrong. The military will not employ someone who is openly gay for that reason alone -- there is nothing "friendy" or "unfriendly" about it. While I may wish private employers to extend the same benefits to homosexual couples that they extend to heterosexual couples, that kind of failing is not in the same class of evil as the military's outright refusal to hire.

    Posted by: Homer | Nov 30, 2004 5:48:26 PM

    It's not the JAG lawyers who set the policy, a lot (if not most) of whom do not agree with it.

    I'm also certainly a wrong-headed bastard for demonizing the antebellum South, even though there were countless non-slave-owning southerners. But I gotta be me.

    Posted by: Matt Davis | Nov 30, 2004 6:06:48 PM

    To Sam's point--that threat (to refuse Pell Grants to students of uncooperative schools) dates back to the Grove City case in the early 80's. Grove City College and Hillsdale College (which had always been racially integrated) refused to meet some requirements of the forced integration laws (I think it was hiring a full-time Dean of Diversity but may very well be wrong) and accepted no direct Federal funding. Since the government needed a lever to pressure them, it decided that aid to students counted as federal aid to the institutions.

    Posted by: SamChevre | Nov 30, 2004 6:37:16 PM

    Well after the debacles are Abu Grahib and other places you could argue that the military NEEDS more lawyers around.

    Once I finish school I'd be willing to serve as one of those if only to be a voice dissenting against Geneva violations.

    Posted by: Mimiru | Nov 30, 2004 7:19:15 PM

    Mr. Yglesias,

    You could add to your anlysis the political and social implications of the policy against military recruiters.

    I.e., the fact that in doing this the "elite" academic world is just further increasing the US political divide - the military does not get a hearing on campus, and "progressive" opinions don't get represented in the military. That is a high cost for a useless gesture.

    Posted by: luisalegria | Nov 30, 2004 7:45:26 PM

    Matt,

    I think that what's also missed here is that military lawyers exist to protect the rights of soldiers. Sometimes, JAG lawyers are the only line of defense some poor 18-year-old has against abuse in training at the hands of superiors. Also, the military comes down hard when soldiers commit crimes, much harder than your state law enforcement agencies are likely to. A civilian convicted for rape can do as little as three years, while a soldier convicted of the same thing might do twenty.

    So I wish those law students who wasted the recruiters time would find a different way to protest; maybe it's just me, but it seems like the left is sacrificing the individual here.

    Posted by: Fred Schoeneman | Nov 30, 2004 8:40:05 PM

    A civilian convicted for rape can do as little as three years, while a soldier convicted of the same thing might do twenty.

    And one should wish that the soldier did fewer years after committing a rape?

    Posted by: bobo brooks | Nov 30, 2004 9:31:58 PM

    ""progressive" opinions don't get represented in the military. That is a high cost for a useless gesture."

    We have been trying to include the bigots in the system, work with them and incrementally change them for 300 years. They are not only still bigots, tho perhaps, perhaps, with a new group to hate, they are the same bigots from the same parts of the country.

    Harry Truman had to point a gun at their heads to get them to see Colin Powell was a man. Fuck em, I don't respect them.

    Posted by: bob mcmanus | Nov 30, 2004 9:47:42 PM

    This decision came up in every class I had today at my respective law school (one of the parties), and the main point was really to allow them to treat recruiters like any other employer. I don't think they're under any illusions about being able to change military policies.

    Posted by: boonelsj | Nov 30, 2004 10:28:03 PM

    I don't think the policies of law schools wrt allowing military recruiters on campus should have anything to do with the professional responsibilities of lawyers.

    This does not have to serve as a lesson in terms of one's ethical obligations as a practitioner upon graduation, but rather should be totally based on school's anti-discrimination policies.

    Just because lawyers sometimes represent bad people (a fact not lost on law students) does not mean law schools should abandon equitable principles - in fact, they should seek the exact opposite path, IMO.

    Besides, with the internet, there's plenty of opportunity for the JAG corps to spam every student's email account they want.

    And law students, for the most part, saddled with three years deep professional school debt, surrounded by highly competetive colleagues and faced with a limited supply of jobs, will seek out every opportunity available, including the military.

    It's no great loss to them to not have direct access to a campus. And, even if military recruiters can't make it on campus, the schools' offices of career services will still advise students of the JAG option as they seek to keep their numbers of students with jobs upon graduation as high as possible.

    Posted by: SoCalJustice | Nov 30, 2004 10:47:21 PM

    Mr. Mcmanus,

    "Dont ask dont tell" would have seemed an outlandish, even depraved policy back in 1951, even to the leftiest lefty.

    The problem with the progressives is that they insist on discovering that everything that was SOP for the last few millenia is suddenly intolerable, and everybody who doesn't instantly get on the new bandwgon is sub-human - and in the process it turns out that all ones honorable ancestors are in a stroke condemned to hell.

    You can't run an institution or a society with that kind of thinking.

    Posted by: luisalegria | Nov 30, 2004 10:56:17 PM

    Mr. SoCalJustice,

    I agree it is small loss to the military on a practical level. But as a symbol it is significnt. There are hundreds of manifestations of these anti-military, divisive attitudes ll over "liberalworld", from high school recruiting obstacles to suppression of ROTC and JROTC, to shutting down of traditional parades and ceremonies, etc.

    Posted by: luisalegria | Nov 30, 2004 10:59:01 PM

    luisalegria: But as a symbol it is significnt.

    Which is exactly why the law schools do it.

    It doesn't make patriotic* students any less patriotic. This really isn't an issue for the overwhelming majority of law students - they all know about the JAG option already.

    It's more about the activist population (mostly the faculty/administration) of the schools, which is routinely ignored by most students seeking K Street and Wall Street jobs anyway.

    The military policy seems as silly as it is discriminatory. There's already plenty of illegal heterosexual fraternization.

    *in this sense used to describe someone pre-disposed to work for the military

    Posted by: SoCalJustice | Nov 30, 2004 11:14:17 PM

    Law schools are silly childish places, just like most blogging comment boards.

    But far more interesting is the 3rd circuits case, which really is an astounding ruling. The rationale seems to be that because the law school has a constitutional right to associate with or exclude whoever they want to under the first amendment(which they surely do), under the unconstitutional conditions doctrine, the government can't condition the receipt of government funds on the giving up of that right.
    That seems incredible. Under that rule, if the government passed a law saying groups that exclude homosexuals cannot receive federal funding, it would be unconstitutional.

    I read the opinion and I feel like I'm missing something here. That just can't be a correct application of the unconstitutional conditions doctrine.

    Posted by: Reg | Nov 30, 2004 11:26:48 PM

    "the government can't condition the receipt of government funds on the giving up of that right"

    I do not see why this principle would be confusing. The government is barred by the 1st Amendment from regulating xyz, and that includes regulation by the conditioning of funding.

    Posted by: Bruce Wilder | Dec 1, 2004 12:05:22 AM

    "You can't run an institution or a society with that kind of thinking."

    You defend conservatism well, luisalegria. Or at least politely. I am not without sympathy for your position, but unlike examples of useful and necessary traditions such as human sacrifice, slavery, the subjugation of women...I have a great deal of difficulty understanding a prejudice against gays in the military on any grounds within the reach of reason. Soldiers will screw a knothole in a tree, and walk away without looking back at it. And there are always issues of competition, dominance, and inequality in any military unit that must be dealt with.

    Posted by: bob mcmanus | Dec 1, 2004 12:10:09 AM

    luisalegria,

    All your practical arguments are off base. Law schools have administrative units that help match students and prospective employers. One of their activities is to arrange gatherings where employers make presentations to students. Every university and every law school has rules that say employers with an overt policy of discrimination cannot use the facilities of the school to recruit. Therefore, the military isn't invited to present at the gatherings.

    No law stdent is going to fail ro hear about JAG because of this. The military are free to discuss employment in public areas. In practice, they conduct interviews in ROTC offices, found on most university campuses. Many law stuents are in ROTC and owe payback time to JAG, and their classmates know about them, an exposure no civilian law firm has. IOW, the practical effect on JAG recruiting is zero.

    But it is a symbolic denigration. It says that the military just isn't quite um classy enough to be invited to the party, or at last to enter through the front door. And the military was wounded by it enough to get the Solomon Amendment passed.

    All the whines from the military are about the elite schools. The narcissistic injury is that they can't get in the door at Yale (or even one of the flashy litigator-factories in Boston). Imagine the dejection of someone who went to the law school of a public university when no one bothers to denounce his alma mater.

    You don't have to go to a fancy school to deconstruct the symbolic messages here. The military are sending the message to homosexuals that they're evil abominations. The schools are sending the message that this is an unacceptable attitude. The military is sending the message that they are Herrenvolk who will shut down a university if deference isn't shown.

    Posted by: Roger Bigod | Dec 1, 2004 12:20:40 AM

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