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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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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.