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FAIR v. Rumsfeld:

A couple of interesting columns in the Weekly Standard on FAIR v. Rumsfeld, the Solomon Amendment case, "Don't Serve / Don't Tell: The limits of liberal tolerance at Harvard Law School" by Harvard Law Student Kate Thornton Buzicky and Scott Johnson's "JAGS Not Welcome: America's top law schools try to figure out a way around the Solomon Amendment."

alkali (mail) (www):
It gets worse. It turns out that at Harvard, anyone can hand out handbills without the prior approval of the administration, even if the handbills are critical of the armed forces.
11.18.2005 10:16am
Cornellian (mail):
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 above is a quote from one of the articles. With that kind of resistance from the student body, you'd have to wonder why the Army / Navy / Air Force / Marines bother trying to recruit from the top law schools. Even if the university faculty and administration welcomed them, it doesn't look like they'll be getting too many applicants.
11.18.2005 10:25am
Nobody Special:
Cornellian- it builds brand name and gives them the opportunity to make their pitch. Lots of people who weren't considering it originally get lured into government service because of the responsibilities and control given to young attorneys. The various JAG Corps have a similar pitch.
11.18.2005 11:20am
Michael B (mail):
"With that kind of resistance from the student body, you'd have to wonder why the Army / Navy / Air Force / Marines bother trying to recruit from the top law schools. Even if the university faculty and administration welcomed them, it doesn't look like they'll be getting too many applicants." Cornellian

Conformity can be comforting, especially so in the face of unpopular causes. As for those who might wish to consider the opportunity, the wager, whatever one might choose to call it, why on earth should that minority be given a forum in the first place? Choice, an outmoded concept if ever there was one.
11.18.2005 11:45am
Thorley Winston (mail) (www):
Cornellian- it builds brand name and gives them the opportunity to make their pitch. Lots of people who weren't considering it originally get lured into government service because of the responsibilities and control given to young attorneys. The various JAG Corps have a similar pitch.


In addition, there is probably the concern that if the military doesn't at least try to recruit on campus after invoking the Solomon Amendment, it may weaken latter attempts to defend their ability to recruit on that campus.

One of the best ways to lose a right is to neglect to utilize it when you have the chance.
11.18.2005 12:16pm
CBI:
I attend a historically black law school (admittedly 4th tier) in the southwest. Most of us are 1st generation college graduates. Few of us have law professionals in our immediate or extended family. JAG recruits on our campus and their slots are some of the first to be filled. This year they came back for additional interviews because the originally scheduled time block wasn't enough to fit in all the students who wanted a slot. What's the difference between our campus and Yale/Harvard? Something to think about.
11.18.2005 12:37pm
Cornellian (mail):
I attend a historically black law school (admittedly 4th tier) in the southwest. Most of us are 1st generation college graduates. Few of us have law professionals in our immediate or extended family. JAG recruits on our campus and their slots are some of the first to be filled. This year they came back for additional interviews because the originally scheduled time block wasn't enough to fit in all the students who wanted a slot. What's the difference between our campus and Yale/Harvard? Something to think about.

I suspect the abundance of private sector opportunities for a graduate of a top law school that pay a lot more than the military JAG's has something to do with the relative lack of interest in the JAG's. It's not all distaste for the military's "don't ask don't tell" though that's probably some part of it.
11.18.2005 1:16pm
Cornellian (mail):
Conformity can be comforting, especially so in the face of unpopular causes. As for those who might wish to consider the opportunity, the wager, whatever one might choose to call it, why on earth should that minority be given a forum in the first place? Choice, an outmoded concept if ever there was one.

A university is run by its adminstration and faculty, not by its students. Their desire to be present on campus requires the consent of the occupier of that campus, i.e. the university, not the student interviewee. A Congress that can condition federal funds on a university's waiving its right to freedom of association can also condition federal funds on the Boy Scouts' waiving their associational right to exclude homosexuals.
11.18.2005 1:19pm
Michael B (mail):
"A university is run by its adminstration and faculty, not by its students." Cornellian

Now that's more than a little interesting. Is this the first commandment as now expressed on PC, quasi-dictatorial campuses, or does it exist on the second tablet brought down from Mt. Sanai? Allow me to introduce you to the Golden Calf, a wee bit of non-conformist idolatry.

The administration should be, on both ethical and legal grounds, responsible to and responsive to the student body and not merely the majoritarian views expressed by that body. Ultimately both the administration and the faculty members are there to serve, not to estabish a powerbase or fiefdom dependent on their social/political predilections or aesthetic sensibilities du jour. The exact form that takes, regarding any single issue, is certainly up for discussion, both on legal and less formal grounds; nonetheless that basic principle is likely to be admitted by most administrators, faculty and students, in my humble opinion.

It's undeniably true the campus has become a kind of ad hoc, collegial/authoritarian mix, both de facto and de jure, and depending upon the issue involved. But that's why viable legal challenges can be mounted within the context of our classical liberal form of government. Whether people, minority populations and/or the federal govt. supplying funds to the university, choose to stand up and fight within the legal venues offered by the system is ultimately up to them.

Some people choose weakness and apathy and resignation. Others don't.
11.18.2005 2:31pm
Cornellian (mail):
"A university is run by its adminstration and faculty, not by its students." Cornellian. Now that's more than a little interesting. Is this the first commandment as now expressed on PC, quasi-dictatorial campuses, or does it exist on the second tablet brought down from Mt. Sanai?

Umm, it's a little concept called private property. Ever heard of it? A private university (not a state one) is a business, the students are its customers. The students don't own the university anymore than I own a portion of Safeway if I buy groceries there. One might well argue that a university should be responsive to students wishes like any business should be responsive to its customers, but it has no obligation to do so, and certainly no constitutional obligation.
11.18.2005 7:31pm
Public_Defender:
Of course, the Weekly Standard missed one easy resolution to the problem. The military could decide that it is crass bigotry to refuse to hire a lawyer because he or she is gay. Neither of the Weekly Standard articles explained what sexual orientation had to do with the ability to practice military law.

There is no explanation other than bigotry to explain why the military would turn down a higher qualified gay lawyer in favor of a less qualified heterosexual lawyer.

Hasn't the military harmed national security enough by firing much-needed translators simply because they were gay? We are all paying a price for the anti-gay animus of the Right, the Congress, and the military.

The next time we discover a critical Arabic-language dispatch that wasn't translated until after a terrorist attack, I'm sure the victims' families will understand that permitting gay people to translate (or practice law) is too high a price to pay.
11.19.2005 8:07am
Michael B (mail):
Cornellian,

The subject concerns the two articles, aptly entitled Don't Serve/Don't Tell, relating one form of intolerance on campus, and JAGs Not Welcome, relating another. Likewise, as the second article makes explicit, we're talking about the Solomon Amendment, substantial federal funds which render institutions like Yale (the subject of the second article) quasi-private or quasi-public institutions as they accept hundreds of millions of taxpayer dollars. Too, unlike yourself (and perhaps Public_Defender as well?), am not making an absolutist argument, am making a political/pragmatic argument formed additionally upon principles of tolerance - vide, this Yale Daily News article by a recent Yale grad. In the end our quasi-public, public and governmental institutions, precisely because we live in a democratic republic, will variously reflect the tempers, prejudices and leanings of that broader public.

Too, those who wish to instruct others about the subject of tolerance might choose to lead by example much more often than they in fact do. There are certainly subjects which would disallow virtually any "tolerance" (e.g., forced entry into one's home), but the absolutist, intolerant displays within public and quasi-public spheres is qualitatively in an entirely different category than that and similar examples.

Respectfully, MB
11.19.2005 11:27am
Public_Defender:
I agree that rudeness to members of the military is not the proper response. I guess we agree that "tolerance" is the goal. But I think that the military should tolerate gays and lesbians, and then be welcomed to recruit in American law schools.

But again I notice that you cannot explain why it is important for an Army lawyer to be heterosexual.

While I think personal comments are inappropriate, I think some of the student actions are perfectly fair. If students want to boycott the military recruiters and use peer pressure to enforce the boycott, that sounds like the freedom not to associate. If pro-gay-rights students want to try to fill all the interview slots, that's their right.

Congress and the military have the power to put the protesters on the moral low ground--start hiring lawyers based on their ability to be lawyers, not on their sexual orientation.
11.19.2005 12:09pm
Michael B (mail):
This is not about "rudeness" or any kind of "tolerance" between individuals as conceived in an essentially private sense. It's about social/political tolerance in the public square as conceived in its broadest sense. Additionally, I addressed your concern in the third and final link provided. It was additionally addressed within the framing provided, i.e., the political/pragmatic framework vs.

I notice you continue to respond with an absolutist argument rather than addressing the specifics and substance of what was in fact offered. It's patronizing at best to talk about mere "rudeness" when that is not the subject in the least. If your argument remains absolutist, unbending, then simply say so. Or perhaps that absolutist demand is what you're expressing.
11.19.2005 1:06pm
Michael B (mail):
Last sentence of the first paragraph should read "the political/pragmatic framework vs. the absolutist framework."
11.19.2005 1:08pm
Public_Defender:
I see the point about tolerance, but the military should only expect as much tolerance as it gives out. The military and Congress decided to play the absolutist card. The military absolutely will not hire a gay lawyer even if he or she is the best candidate.

That said, banning military recruiters from on-campus interviews is not "absolutist." The military can still recruit law students if it wants. It just can't be able to use law school facilities to do it. I got my first job out of law school without on-campus interview. So do thousands of others.

Banning the military (and other anti-gay employers) from using campus recruiting facilities sounds like a good compromise. It sends the military (and public) the message that the school and the students (at least most of them) oppose anti-gay bigotry. But students who want to work for the military can bypass the system and make their own interview contacts.
11.19.2005 3:20pm
Michael B (mail):
"I see the point about tolerance ..."

Yet you continue to fail to address it; you evade more than you address the point, far more.

"... but the military should only expect as much tolerance as it gives out."

This too is rife with casuistic evasiveness. The basic principles (de facto) and the legalities of the Solomon Amendment are obviously at issue. Positing an equivocation between the military and the quasi-private/quasi-public campus which recieves mega-funds from the taxpayer is at issue.

Large on rhetoric; far less substance. Don't have time to trade lawyerly responses and casuistries and am tired of being patronized. Have a good weekend.
11.19.2005 3:34pm
Public_Defender:
. . . rife with casuistic evasiveness. The basic principles (de facto) and the legalities of the Solomon Amendment are obviously at issue. Positing an equivocation between the military and the quasi-private/quasi-public campus. . . .
That's clear enough. But you did not address the argument that students were free to arrange meetings with recruiters outside of the on-campus interview process. So what if they have to go off campus for interview? Thousands of law students do that every year.

The law schools aren't barring students from interviewing with the military. The schools are just denying the military access to on-campus interview facilities.
11.19.2005 3:53pm
dk35 (mail):
So let me get this straight...when the government blackmails private institutions into enabling a bigoted policy, that's fine...but when a bunch of students sign a petition opposing the policy and hang it on the wall, that's some kind of terrible sin?

It's as if the world has turned upside down.
11.19.2005 8:32pm
Bottomfish (mail):
Everyone seems to assume that don't-ask-don't-tell is a policy equivalent to excluding homosexuals entirely. Given the number of social situations that occur in which we are not supposed to say what we think even though theoretically we all believe in free speech, that's an interesting assumption.
11.20.2005 12:07pm
Michael B (mail):
dk35,

Firstly no one is objecting to the petition or the posting of the petition. Secondly, your rhetorical misapplication of the "blackmail" term is precisely that, rhetorical excess and misrepresentation. You can use terms like blackmail, extortion, protection racket or any number of other terms, but these are not the private funds of the university which are being "blackmailed" away from the private university, these are taxpayer/govt. funds. If the term blackmail or extortion is to be used then, given the fact these funds are the funds of the federal govt/taxpayer, it would be more apt to say the university is attempting to blackmail these taxpayer's funds. It's not a formulation I would use, even rhetorically, but if the term is to be used, it would be more aptly used in that sense.

"But you did not address the argument that students were free to arrange meetings with recruiters outside of the on-campus interview process." Public Defender

This is not as rhetorically absurd as dk35's comment, but it evades the very subject being debated. There are any number of ways to respond. For example, you did not address the argument, admittedly implied rather than overtly stated, that these quasi-public institutions can simply refrain from taking the hundreds of millions of taxpayer funds they in fact take in the first place. Your argument remains an absolutist one, you're saying your way or the highway.
11.20.2005 4:00pm
Public_Defebder:
Actually, the law schools cannot "simply refrain from taking the hundreds of millions of taxpayer funds. . . ." The government threatens to money from the med school (and every other school) based on decisions of the law school. It's kind of like the mob threatening to go after your sisters if you don't conform.

And you still didn't say why its too big a burden for recruiters to go off campus.

There are two questions in this case. 1) Can Congress impose these limitations? 2) Should Congress impose these limitations?

I'll leave the first question for others, but as to the second, supporters of the policy need to explain why it's OK for an Army lawyer to visit prostitutes and strip clubs, but it's not OK for the lawyer to be in a long-term monogamous relationship (even marriage if the lawyer is from Massachusets) with a person from the same sex.
11.21.2005 4:18am
Bottomfish (mail):
Of course, the university is normally under a single head called the President. It seems reasonable to suppose that the university is therefore a single entity no matter how many different schools and institutes it may have. No one would argue that because a corporation has a number of subsidiaries it is therefore not a single unit.

The argument of the law schools seems to be that the fact that they receive funds from the government should not prevent them from the free exercise of speech rights, which in this case means excluding military recruiters because the military policy is bigoted. This is the doctrine of "unconstitutional conditions". The idea, presented in a slightly narrowed form, is that the government may not use funding as a way of imposing requirements on the recipients of that funding that would be unconstitutional if funding were not involved.

"Unconstitutional conditions" has been invoked many times before but there are two recent SC decisions that do not auger for its success. They are Rust vs Sullivan (1991) and US vs American Library Association (2003). Both the clinics (in Rust) and the libraries (in American Library) received Federal funding but that did not prevent the government from successfully restricting supposed free speech. Personally, I think the government did have the right to restrict speech in both cases.
11.21.2005 5:12am
Public_Defender:
Bottomfish,

I did not argue the Court should strike down the Solomon Amendment based on the unconstitutional conditions argument. My guess is that the law will pass Supreme Court muster. I argued that there is no good policy reason behind the anti-gay policy established by the Congress and the military.

Once again, no one has been able to explain why it makes sense to permit military lawyers to a visit strip club or a prostitute, but not to have a long-term monogamous gay relationship.

As a matter of policy (which the responsibility of the military and Congress) there is nothing to counterbalance the law schools' interest in fair treatment of their students. How is a gay military lawyer any less effective of an advocate than a heterosexual lawyer?

Because I think that the Solomon Amendment is probably constitutional, but the military's anti-gay policy is repulsive, individual student action is the appropriate response.

While the government has the right to withhold funds from non-complying schools, pro-gay-rights students have every right to fill up the interview spots or attempt to use peer pressure to enforce a boycott.

I do see the point behind the "change from within" argument (the hope that new lawyers from top schools will convince the military that the anti-gay policy is wrong). Perhaps students could make an exception to the boycott for their colleagues who make open pledges to fight the anti-gay policy from within the JAG corps.
11.21.2005 8:18am
Michael B (mail):
Public_Defender,

More misrepresentations and rhetoric in lieu of honest debate. I didn't say the law schools could simply ..., what I did say was "... these quasi-public institutions can simply refrain from taking the hundreds of millions of taxpayer funds they in fact take ..."

Am not attempting to change your mind, more simply pointed out yours is the argument of an absolutist willing to exercise authoritarian control and fundamentally intolerant of dissenting views.
11.21.2005 2:59pm
Public_Defender:
More misrepresentations and rhetoric in lieu of honest debate.
I guess we agree about something. There's no need to continue the argument.
11.22.2005 4:18am