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JAGS Not Welcome

America's top law schools try to figure out a way around the Solomon Amendment.

12:00 AM, Sep 27, 2005 • By SCOTT W. JOHNSON
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WHEN NAVY JUDGE ADVOCATE GENERAL RECRUITER Brian Whitaker visited Yale Law School in October 2003 to meet with students interested in serving as Navy lawyers, his reaction must have been something like that of the man who was tarred and feathered and ridden out of town on a rail; if it weren't for the honor of the thing, he'd probably rather have passed on it. Virtually all Yale law students had signed a petition vowing that they would not meet with Whitaker or other JAG recruiters. The petition was publicly displayed inside the law school as part of a protest display that included black and camouflage wall hangings. The one law student scheduled to meet with Whitaker cancelled the interview.

The ostensible cause of the consternation occasioned by Whitaker's visit was the military's compliance with the federal "don't ask/don't tell" law on homosexual conduct in the armed forces. Law schools across the country have hindered military recruiters from meeting with law students because the military's adherence to the "don't ask/don't tell" law violates nondiscrimination policies enforced by the schools against on-campus recruiters.

Whitaker's putative right to visit Yale Law School despite its nondiscrimination policy was attributable solely to the Bush administration's enforcement of Solomon Amendment requiring federally-funded universities to open their doors to military recruiters at the risk of losing federal funds. After 9/11 the Defense Department began to threaten enforcement of the amendment, and law schools began to comply. At Yale, for example, the law school has waived its nondiscrimination policy in order to preserve the university's annual $350 million in federal funding only since the fall of 2002. Then-law school Dean Anthony Kronman explained:

We would never put at risk the overwhelmingly large financial interests of the University in federal funding. We have a point of principle to defend, but we will not defend this--at the expense of programs vital to the University and the world at large.

Dean Kronman paid a backhanded tribute to the "money talks" impetus behind the Solomon Amendment. Call it the Yale Doctrine: Taking your money for the good of the world.

LAW SCHOOLS have not confined their resistance to the Solomon Amendment to the kind of inhospitable welcome extended to Brian Whitaker. The month before Whitaker's visit, several unidentified law schools and law students filed a lawsuit--FAIR v. Rumsfeld--in New Jersey federal district court seeking to have the Solomon Amendment declared unconstitutional on First Amendment grounds. According to the FAIR plaintiffs, the Solomon Amendment violates their academic and associational freedoms.

At the time the lawsuit was filed, the legal merits of the FAIR lawsuit seemed to rival those of obesity lawsuits brought by overweight consumers against fast food outlets. A divided panel of the Third Circuit Court of Appeals held in favor of the plaintiffs, however, finding it likely that the Solomon Amendment unconstitutionally infringed the law school's First Amendment rights. The case now awaits a hearing by the Supreme Court this December.

THE NONDISCRIMINATION POLICIES enforced by many law schools against the military are themselves attributable to the requirements of the Association of American Law Schools (AALS). Mark Tushnet is Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center and was president of the AALS in 2004; he is one of the most prominent left-wing law professors in the country. But before the filing of the FAIR lawsuit, Tushnet and other AALS board members voted unanimously not to initiate or join litigation against the Solomon Amendment. In an interesting memorandum to AALS members, Tushnet explored some of the difficulties such litigation would entail.

Among the reasons Tushnet advanced to support his vote is the fact that the nondiscrimination policies adopted by the law schools were themselves required by the AALS, the organization that serves as legal education's principal representative to the federal government:

I believe that there is some tension between the Association's assertion of a member school's right of academic freedom and the fact that many member schools adopted the policies at issue under the Solomon Amendment in response to the Association's interpretation of its non-discrimination policy. There's no technical problem here, but only an awkwardness: Putting it bluntly (as the defendants in litigation would), how can the Association assert that its member schools have made academic freedom judgments when the policies at issue were adopted because of pressure from the Association, not because of member schools' own reflection on their missions?

Tushnet's point was couched in terms of reflection on litigation strategy rather than on the merits of the lawsuit per se. His discussion of the merits was understated and tactful but equally revealing:

The litigation would have to take on two difficult issues, the scope of Congress's spending power (an unconstitutional conditions point), and the degree to which the courts should defer to Congress's judgments in matters involving the military forces. It is not impossible to succeed in those challenges, but the arguments are difficult and complex, and it was not clear to me that it would be a valuable expenditure of AALS officers' time to supervise the development of such arguments.

ONLY LAST WEEK, in another illustration of the Yale Doctrine at work, Harvard Law School Dean Elena Kagan announced that the military would be allowed to recruit at the law school for the first time in years. Also last week, former acting-solicitor general Walter Dellinger filed a friend-of-the-court brief in the Supreme Court on behalf of 40 Harvard Law School professors (including Dean Kagan). In the brief Dellinger argues that the Solomon Amendment applies only to schools that baldly prohibit military access on campus, not to schools' whose policies simply have the (allegedly) incidental effect of doing so. Dellinger distinguishes the law schools' contemporary anti-discrimination policies from Vietnam-era academic anti-military policies.

Dellinger's argument based on the language of the Solomon Amendment is, to say the least, strained, and the brief seems to provide evidence sufficient to rebut the gist of Dellinger's legal argument, but former Air Force Lt. Col. Raymond Swenson powerfully addressed this particular point in the conclusion of his 2003 guest column for the site FindLaw:

Don't believe this controversy is really about "don't ask, don't tell." Instead, it's about a longstanding animosity. Since the Vietnam War, this animosity by professors toward the military has continued unabated. It killed ROTC programs on many campuses. It is felt by military officers, such as myself, who have applied to attend law school under military scholarships. And it can be seen in the response to Operation Iraqi Freedom. Even if the military's "Don't Ask Don't Tell" policy were ended, plaintiffs would claim other reasons for banning the JAG. This isn't a First Amendment case about reforming the military. It's an anti-First Amendment case based on hatred for the military. As such, it should fail.

Some lawsuits deserve a fate worse than failure. While decent military officers like Brian Whitaker suffer the rudeness of their purported betters at Yale Law School and elsewhere in silence, the armed services of the United States are actively defending these schools from mortal peril. The rank ingratitude of those who should know better is a disgrace; it deserves to be widely recognized as such.

Scott Johnson is a contributing writer to THE DAILY STANDARD and a contributor to the blog Power Line.