How not to fight "don't ask, don't tell."

The law, lawyers, and the court.
Aug. 17 2004 9:17 AM

Law Schools That Protest Too Much

Universities are kicking military recruiters off campus. What a bad way to fight "don't ask, don't tell."

Tens of thousands of law students will return to campus this week to start their fall semesters. Thousands of lawyers from law firms and public agencies across the country will also descend on America's law schools as part of fall recruiting season, looking to entice fresh talent into joining their ranks. A delicate dance will ensue: The law students will don regalia from Men's Wearhouse and Ann Taylor in order to impress the lawyers, and the lawyers will promise riches and work beyond the students' wildest dreams. Law schools play the role of matchmaker—arranging interviews, coaching students and firms alike, and even setting up socials that strangely feel like singles mixers. A certain kind of euphoria grips most law schools during this season, and engulfs all who play a part in this recruiting extravaganza.

All, that is, except for two groups who have transformed this mating ritual into a battle that is being fought right now, appropriately enough, in the courts. Coalitions of professors, administrators, and students have filed suit in several courts challenging the military's right to recruit its lawyers on campus, because of the continuing legal restriction on the service of gays in the military. Not surprisingly, the Pentagon has fought back, threatening the federal funding of colleges who deny them recruiting access. For these two camps, animosity and protest have replaced the atmosphere of love and avarice typical of fall recruiting season. The result is a nasty legal fight that does more harm than good to both sides, and the nation.

Advertisement

The story begins in 1994, with Congress' passage of a law called the "Solomon Amendment." After Congress codified the military's "don't ask, don't tell" policy in 1994, a number of colleges decided to expel (or threaten to expel) the military because of the conflict between their collegiate nondiscrimination policies (which included sexual orientation) and the military rule on gays in uniform. In response to this, and the perception of general anti-military animus on campuses, Rep. Gerald Solomon, R-N.Y., added an amendment to the defense budget that conditioned the receipt of federal funding on the allowance of military recruiters and ROTC units on campus. The new law meant that federal funding for research, student aid, teaching hospitals, and other areas would be pulled if a college decided to exclude the military from campus.

During the late 1990s, a detente of sorts developed between the Pentagon and universities on this issue. Most universities made no overt attempt to kick the military off campus, and military recruiting continued. In the law school context, Judge Advocate General recruiters often worked through on-campus ROTC units or veterans organizations to recruit outside the official law firm recruiting system. Instead of recruiting on campus, in uniform, where their presence would offend student and professor sensibilities, JAG recruiters often rented nearby hotel rooms or interviewed students in ROTC program offices. These covert recruitment methods worked—the military always met its recruiting targets for new JAGs—but some saw it as a form of appeasement to the gay rights community. Nonetheless, Congress watered down the Solomon Amendment in 1999, removing student aid from the kinds of money that could be pulled from colleges.

In 2000, the detente began to fall apart, largely because the Pentagon decided these alternate means weren't good enough—it wanted to be part of the on-campus recruiting process. The Defense Department promulgated new regulations for enforcement of the Solomon Amendment and signaled its intention to enforce the law harshly against campuses like Yale, which required the military to recruit through alternate means. Law schools and law professors began to clamor for more action on this policy, which clashed both with their nondiscrimination policies and their teachings on equal protection and the law. Gay and lesbian student groups, particularly at elite law schools like Harvard, Yale, and Stanford, pressed their administrations to kick the military off campus altogether. Eventually, as you would expect in a fight involving lots of lawyers (or aspiring lawyers), the activists decided to sue the Pentagon.

Several groups of students and law professors filed a series of lawsuits challenging the Solomon Amendment on a variety of legal grounds. The crux of the challenge is this: Punishing law schools for kicking the military off campus interferes with law professors' and law students' rights of free speech and free association, and therefore the Solomon Amendment is unconstitutional. So far, the government has beaten back or delayed each challenge at the trial court level, but one of the cases is now pending before the 3rd Circuit Court of Appeals. (Full disclosure: I helped write a friend-of-the-court brief, on behalf of military veterans attending law school, supporting the government in the case before the 3rd Circuit.)

If the plaintiffs prevail—and it's very possible they might, given what I observed at oral argument before the 3rd Circuit in June—the courts will bar the Pentagon from enforcing the Solomon Amendment. Universities and their law schools will be free to exclude the military from campus, as their nondiscrimination policies say they must for any employer who discriminates on several bases including sexual orientation. JAG recruiters will certainly be barred from the elite law schools participating in this litigation. Military recruiters could also be ejected from 96 percent of the law schools in the country, because of an Association of American Law Schools  policy that conditions law school accreditation on compliance with the AALS nondiscrimination policy—something that can be (and has been) read to require the military's exclusion from campus.

But even if the students and professors win, this will be a Pyrrhic victory at best. There are a couple of cases pending in the military justice system that could, theoretically, be used to overturn "don't ask, don't tell" and/or the military's sodomy laws on the basis of what the Supreme Court said in its landmark 2003 gay rights decision Lawrence v. Texas. And the Servicemembers Legal Defense Network says it may file a direct challenge to the exclusion policy within the year. But no matter how well the law students and professors do in their respective cases, they will not achieve the full victory they are after because a victory over the Solomon Amendment will not change the military's policy on gays in uniform—something that has been carved into federal statute and upheld by four separate federal appellate courts.

Indeed, the fact that so many courts have ruled in favor of the military on this issue may signal that courts are the institution least equipped to deal with it. For one thing, the Constitution explicitly grants Congress a monopoly on power in this area. ("The Congress shall have Power … To make Rules for the Government and Regulation of the land and naval Forces.") This makes it very easy for the government to win by asking the court to defer to the judgment of Congress and the president on this issue. For another, these kinds of issues—heavy as they are with policy debate and analysis—are not well-suited to judicial decision-making, which can generally consider only the arguments and evidence on the record. Recently, the most progress on this issue came through the election of President Clinton in 1992, although his pledges to end the ban on gays in the military ultimately stalled for political reasons. If future movement on this issue happens, it will likely occur with the election of another politician willing to change this policy—not by judicial fiat.

Regardless, the plaintiffs in the Solomon Amendment case might still say their litigation has value. Even if they can't change "don't ask, don't tell" directly, they will send a powerful symbolic message by kicking the U.S. military off the nation's elite university campuses (or at least out of its law schools). Perhaps. But as symbolic protests go, this one might do more harm than good. First, removing military recruiters and ROTC units from colleges will alienate a great number of veterans—including those, like me, who feel that gays should be allowed to serve their nation in uniform. On this issue, veterans' voices have a disproportionate impact because of their personal credibility on issues of military readiness and personnel policy. As voters, community opinion leaders, and elected officials, veterans will likely play a key role in any future political debates on this issue. And so they are one constituency the gay rights community cannot afford to alienate if it ultimately wants to overturn "don't ask, don't tell" through the political process.