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Yale vs. U.S. Military, Round 2 By: Scott W. Johnson
FrontPageMagazine.com | Friday, October 17, 2003

When Navy Judge Advocate General recruiter Brian Whitaker visited Yale Law School on October 9 to meet with students interested in serving as Navy lawyers, his reception was not unlike 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 law students signed a petition 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.  To top off the warm reception, 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 “don’t ask/don’t tell” policy on homosexuality.  Law schools across the country have banned recruiters from the JAG program because the military's "don't ask, don't tell" policy violates nondiscrimination policies enforced by the schools against recruiters on campus.

Whitaker’s ability to visit Yale Law School despite its nondiscrimination policy is attributable solely to the Bush administration’s enforcement of the 1995 Solomon Amendment requiring federally funded universities to open their doors to military recruiters.  The Defense Department only recently began to threaten enforcement of the amendment, and the law schools only recently began to comply.  At Yale, for example, the law school has waived its nondiscrimination policy in order to preserve the university’s $350 million annual federal funding only since the fall of 2002.

The law schools have not confined their resistance to the Solomon Amendment to the kind of inhospitable conduct extended to Brian Whitaker.  In mid-September several unidentified law schools and law students filed a lawsuit in New Jersey federal district court seeking to have the Solomon Amendment declared unconstitutional on First Amendment grounds.  According to the plaintiffs in the lawsuit, the Solomon Amendment violates their academic and associational freedoms.

The legal merits of the New Jersey lawsuit rival those of the obesity lawsuits brought by overweight consumers of fast food outlets – they are, so to speak, slim to none.  The nondiscrimination policies enforced by many of the law schools against the military are themselves attributable to the requirements of the Association of American Law Schools. Mark Tushnet is Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center and president of the Association of American Law Schools; he is one of the most prominent left-wing law professors in the country.

Earlier this year Tushnet and other AALS board members voted unanimously not to initiate or join litigation against the Solomon Amendment.  In an extremely interesting memorandum to AALS members, Tushnet explored some of the difficulties such litigation would entail in explaining why he voted against the AALS becoming a party to litigation against the Solomon Amendment.

Among the reasons Tushnet adduced in support of 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 above is couched in terms of reflection on litigation strategy rather than on the merits of the lawsuit per se. His discussion of the merits is 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.”

Despite the damning evaluation of a knowledgeable scholar like Tushnet, it is virtually impossible to find a considered discussion of the merits of the issues raised by the plaintiffs in the New Jersey lawsuit. A guest column at the FindLaw legal site constitutes a rare exception to this situation.  Former Air Force Lt. Col. Raymond Swenson dispatches the express legal arguments against the Solomon amendment in short order.

On the basic First Amendment issue, Swenson notes that the law schools have the argument upside down.  Swenson notes that “the plaintiffs want to use the First Amendment not as a shield, but as a sword. Their claimed right is not a right to freely speak one's opinions, or freely associate with others. To the contrary, it is a right to enforce their opinions by silencing others - and to prevent freedom of association by banning contact between law students and the JAG. In the plaintiffs' view, their rights to speak and associate override these same rights for others. Remember, law students are not forced to meet with JAG recruiters and be recruited by them; they choose to do so.”

Swenson is devastating on the legal issues, but he is perhaps most trenchant on the animus underlying the lawsuit: "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, however, deserve a fate worse than failure.  While decent military officers like Brian Whitaker suffer the rudeness of their purported betters at Yale Law School in silence, the armed services of the United States are actively defending the school from mortal peril.  The rank ingratitude of those who should know better is a disgrace that deserves to be widely recognized as such.

This essay is an expanded version of an entry in the weblog PowerLineBlog.com.

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