pageok
pageok
pageok
More on the HLS Solomon Argument:

A Harvard Law Student cc'ed me on a letter submitted to the Harvard Crimson regarding the story referenced earlier today on FAIR v. Rumsfeld.

To the Editor:

Re "Harvard Profs' Brief Could Still Sway Court" (Dec. 8, 2005):

Rather than putting forth a Constitutional argument against the Solomon Amendment, as FAIR did at oral arguments on December 6th, a group of Harvard Law professors would instead have the Supreme Court decide the case on statutory grounds. In their brief, they claim that "[m]ilitary recruiters are subject to exactly the same terms and conditions of access as every other employer. When other recruiters have failed to abide by these tenets, they have been excluded." In other words, they claim that the military is given equal access as required under the Solomon Amendment — but the military discriminates against gays, and therefore its access is revoked, as it would be for any other employer that discriminates.

This would be an interesting legal argument — if it were not demonstrably false.

The Law School's non-discrimination policy simply states: "Harvard Law School does not discriminate against any person on the basis of race, color, creed, national or ethnic origin, age, gender, sexual orientation, marital or parental status, disability, source of income, military status or status as a Vietnam era or disabled veteran in admission to, access to, treatment in, or employment in its programs and activities. All employers using the facilities and services of the Office of Career Services must comply with this policy."

Yet in direct violation of this policy, the Law School's Office of Career Services forwards job opportunities that are available only to certain students on the basis of race, color, or ethnic origin. In just last week's news update from the Office of Career Services, no fewer than four announcements violate the non-discrimination policy. One diversity fellowship requires that " [t]he individual [selected] must be a member of a racial or ethnic minority group." Another fellowship restricts eligibility to "persons who are... African American, Latino, Native American, Alaskan native, Asian or Pacific Islander."

The non-discrimination policy contains no exception that would permit discriminatory affirmative action practices. Accordingly, the military's discrimination is held to a tougher standard than any other employer, or so it seems. Under the rubric of "equal access," military discrimination cannot be held to a higher standard than, say, racial discrimination under the non-discrimination policy. The Law School cannot have its cake and eat it too, and so it destroys the arguments of its own academics.

Elliott Marc Davis, HLS'07

The larger point here seems to me to be a sound one. It is not accurate to say that Harvard, or other colleges and universities have a blanket policy opposing discrimination. Rather, colleges and universities routinely balance the goal of nondiscrimination against other educational and social goals. (Leaving aside the question of whether affirmative action should have the moniker "discrimination"). Indeed, the right of universities to undertake this balance as they see fit was one of the central premises of the Grutter case, and one which is captured in the fellowship announcements described above.

So in fact Harvard Law School does not have a policy against discrimination. Rather, they (like almost every other college or university) seem to have a presumption of nondiscrimination, but which is rebuttable (and frequently rebutted) by other offsetting educational and social policies. Dartmouth (a school with which I am obviously familiar) similarly has a principle of nondiscrimination but also has a "Women in Science" program that is closed to male students. Women's soccer and softball teams are open only to women. So the argument boils down not to the argument that Harvard has an uncompromising nondiscrimination principle, because they compromise on it all the time. Rather, it is that they choose not to make an exception with respect to military recruiters that they make for other groups, presumably on the basis that the educational and other policies advanced by equal treatment of military recruiters do not outweigh their assessment of the strength of their nondiscrimination norm. Leaving aside constitutional equal protection questions, Harvard certainly may decide that offering and allowing the advertisement of fellowships that exclude certain groups from eligibility is outweighed by larger educational goals, but that allowing the military to recruit does not offer sufficient educational and social benefits. It is certainly Harvard's right to balance those policies as they see fit, but that doesn't obscure the fact that they are in fact balancing nondiscrimination as one of many prinicples and policies, not applying a blanket principle.

The law schools argument that the military is requesting an exception to an otherwise undbending principle thus seems somewhat specious to me. This does not appear to be a question of an unprecedented departure from a deeply-held principle, but rather of the routine balancing of the principle against many other educational goals which lead to frequent deviations from the principle in numerous instances. Thus, the statutory argument appears to collapse--instead, we simply have the question about whether or not the federal government is permitted to offer money to induce the schools to make an additional exception to the nondiscrimination principle for the benefit of military recruiters that the school routinely makes to advance any number of other policies, from admissions to fellowships.

Harvard has the right to balance the policies as they see fit, and to make exceptions to the general principle (or not make exceptions to it) as they see fit. And assuming there are no constitutional limits, it seems to me that Congress also has the right to balance the policies as they see fit, and to balance them differently if they so choose, and offer money to go along with it to induce the schools to adopt Congress's preferred balance rather than their own. The offer of money (and presumably the educational benefits that the money generates) is designed to put more weight on the scale in favor of the overall benefits of permitting the military to recruit on campus, and that is precisely the point--to influence the way in which universities strike the policy balance between their avowed principles and the routine exceptions that they make to those principles. But to say that they have an unwavering principle of nondiscrimination, and that therefore the statute doesn't apply to them, seems inaccurate to me.

Solomon Skeptic:
Would your position be the same if the Department of Education were using conditions on general funding grants to encourage private universities to adopt prophylatic campus speech codes to combat a hostile environment under Title IX? Or, as the House proposed in 2003, to tie Title VI funding of certain Middle East studies programs from which the government recruits intelligence analysts (at private universities) to the representnation of pro-U.S. views within the faculty and course selection? Or does those hypotheticals raise distinguishable legal questions?
12.9.2005 11:23am
The NJ Annuitant (mail):
I had the pleasure of listening to the oral arguments on the C-SPAN web page. I am intrigued by Justice Scalia's hint, based on his questions, that he views Congress's power to raise an army under Article I , sec. 8 to be sufficient to control this matter. I suppose the reasoning would that if Congress can impose a draft, surely Congress can require military recruiting at law schools.
12.9.2005 11:26am
Justin (mail):
The writer, and you, beg the question of whether favoring a disfavored, underrepresented minority falls under the practical definition of discrimination. The better answer in my view is that affirmative action programs do not "discriminate" against white people. In fact, if given even the slightest bit of thought, the idea of a law firm whose partnership is over 90% white "discriminating" against white people is absurd on its face.
12.9.2005 11:34am
No one of particular import (mail):
Justin sayeth:


The better answer in my view is that affirmative action programs do not "discriminate" against white people.


So programs that by their very nature state in no uncertain terms "whites need not apply" or "only African American, Latino, Native American, Alaskan native, Asian or Pacific Islander" need apply is not discriminatory?

We can argue all day long whether the descrimination is legal, constitutional, justifed, rational, etc. But to suggest it is not discrimination to tell a given racial group they cannot even apply or try is nonsense on stilts.
12.9.2005 11:47am
Steve:
It's very easy for people to see discrimination when they are on the short end of the stick, as the conservative backlash against affirmative action proves. Otherwise, any old excuse will do.
12.9.2005 11:56am
HLSbertarian:
I'm a student at HLS, and of two of the brief's authors. I can tell you that from the looks of it, the HLS amicus argument has as much to do with the profs' larger policy fears as with its own merits. The Constitutional argument, at least the free association aspect, scares the hell out of liberal law profs. The last thing they want is another affirmation of the free association protections of cases like Dale. The profs fear that if this "good fight" ends up extending free association, it will lead to more "bad discrimination" than "good discrimination."

I think many of them do truly believe that the amicus argument has legs, but the approach has less to do with winning the case than with winning it in the way they want. Of course, that's just conjecture from the odd comment here and there.

(Forgive me if this was already discussed elsewhere. I'm a lot newer to posting comments here than to reading.)

As to the Solomon Skeptic above: First of all, you're crazy if you think that most prive universities dont already have such speech codes in place (against D. of Education guidelines). Secondly, your second example is a straw man. The post's entire point was that the nondiscrimination policy can be and is routinely compromised with competing interests. The same approach to the policy of academic freedom may not work, and at least would look much different.

One of Todd's points, as I understand it, is that the limitation MUST be constitutional. And in that framework, associational interests in setting an academic agenda or providing for a certain type of environment may look much weaker than interests in restricting access of certain employers.

I haven't been keeping up with the issue as much as I should be, so I'm not sure if the analysis does go to the strength of the associational interest (and the strength of fund-withholding as inducement, I guess), and I'd be glad if the better-informed among you would break it down. Really, I was just popping up to contribute to the HLS angle, and may happily return to lurking. Happy posting.
12.9.2005 12:11pm
PJK (mail):
NJ Annuitant has pinpointed the real absurdity of the law schools' case: How does the power to raise armies include the power to grab an unwilling person off the street and force him into battle, but not include the power to get equal access to a recruiting event? The law school claims a violation of its right to association, but who faces the greater loss of association rights, the soldier drafted and forced to wear the uniform and submit to military discipline, or the law school which can protest the military presence all it wants (see the SG's representations at oral argument)? Perhaps it could be argued that the draft is essential to the power to raise armies, thus it could survive strict scrutiny, whereas the Solomon Amendment could not. But the Court has gone out of its way to avoid this kind of analysis under the power to raise armies and it shouldn't do so now.

Given the above, it doesn't even seem possible to raise the constitutional avoidance canon. See Rust v. Sullivan. So, Harvard's argument that the statute's plain meaning doesn't require the Law Schools to grant the military access when it conflicts with their general policies is the only argument that has any bite. But, as the letter to the editor points out, HLS doesn't really follow its policy. So this argument collapses as well.

An interesting question, though, is to what extent will members of the Court reach out for a statutory argument that FAIR has disavowed? It seems that the Court shouldn't rely on issues that a party has waived. Then again, private parties shouldn't be able to force the Court to reach constitutional questions when there are statutory grounds for deciding the case.
12.9.2005 12:12pm
dc (mail):
Well, Steve, at least you are admitting there is a short end of the stick, and that where discrimination occurs, someone is getting screwed. How do we pick the class of screwees for the next century? Thoughts?
12.9.2005 12:13pm
Anderson (mail) (www):
Had I only known of Harvard Law's nondiscrimination policy, I would have applied there! My 3.3 GPA in undergrad would have made no difference!
12.9.2005 12:18pm
Solomon Skeptic:
HLS Student:

Yes, I'm well aware of the prevalance of speech codes. Universities that adopt them routinely justify them as compliance measures under Title IX. DOE interpretive guidelines in the Clinton Admin. suggested speech codes may be a permissible, if not encouraged, compliance measure under Title IX. The Bush administration DOE backtracked, as you note. I'm no expert, but there's been a simmering depate about the First Amendment implications of nondiscrimination law, including Title IX, for some time, and speech codes are at the center of it. Yet, conservatives are practically climbing over themselves to mock FAIR and, in the process, torpedo the expressive association theories that might fatally weaken the case for future federal encouragement of such codes. All so the military and war-fighting efforts will have access to the very best Yale law students.

I'm not sure I get your point about the other example: I was responding to the claim that "Congress also has the right to balance the educational policies as they see fit, and to balance them differently if they so choose, and offer money to go along with it to induce the schools to adopt Congress's preferred balance rather than their own." The argument is on its face much broader than affirmative action and other non-discrimination policies, isn't it? Wouldn't the government's rather unorthodox O'Brien theory--that any conditioned funding is analyzed under intermediate scrutiny, so long as it is not aimed at suppressing dangerous ideas--make the Middle East studies example entirely constituitonal? I ask because I'm genuinely interested if there is a limiting principle lurking here, or whether folks actually think this would be just fine.
12.9.2005 12:25pm
Philly lawyer:
Mr. Zywicki misses the point, I think.

The military is treated exactly the same way that any other employer witht he same "dont ask/ don't tell" policy would be treated. If the military had affirmative action poilcies, it would be treated the same as other employers with affirmative action policies.

If all the Solomon Amendment requires is equal treatment, then the Harvard profs are right--the military is being treated exactly the same as any other employer who would have the same policy.

The fact that this policy does not mean what Mr. Zywicki thinks it should mean is beside the point. Harvard has its own idea of what discrimination means, whether or not Mr. Zywicki thinks they are correct, and they treat the military the same way under Harvard's standard as they do anyone else.

The only way the Harvard profs would be "wrong" is if Harvard let other employers who meet Harvard's criteria for discrimination have access that the military does not. The merits of Harvard's criteria are beside the point.
12.9.2005 12:32pm
HLSbertarian:
Skeptic:

I'm not sure about how the two could be distinguished on constitutional grounds and there are many more here who can discuss that much better. My point was only that Todd's statutory argument is tied to the specific case here, and it seems to me that the limit WOULD BE constitutional (thus, Todd's "assuming there are no constitutional limits" caveat). Of course, I may be misreading the whole thing - wouldn't put it past me.
12.9.2005 12:49pm
Solomon Skeptic:
HLSbertarian:

Yes, I agree with you on the statutory point: we were talking past each other. I was focusing on the end of the post, which swings back to more general arguments in favor of the Solomon Amendment, not the statutory part (even though that was the main point of the post).
12.9.2005 12:53pm
Non-Philly lawyer:
And if Harvard were to adopt an across-the-board policy to prohibit access to any employer that maintains nuclear weapons? Or that imposes a dress code?

The military is prohibited by law from complying with Harvard's policy. To blandly assert that the policy is applied equally, including to persons that are incapable of complying with it, is disingenuous in the extreme.

Logically, your argument would sanction a policy under which HLS allowed access to all employers that are approved in the sole discretion of Professor Tribe. An employer could never complain of discriminatory exclusion, on your theory, because the employer was subject to exactly the same standard (discretion) as every other employer.
12.9.2005 12:59pm
Sigivald (mail):
Justin: Yes, it's discrimination in either case. Rejecting or preferring based on race (and other similar categories) is what the word means, no?

Your question is best rephrased, I think, as "is it good and helpful discrimination?". Then we can debate that, and decide if there is such a thing as "good discrimination" or not.

I'm sure Mr. Zywicki's point about the presumption vs. policy is correct as a legal matter, but it's still amusing that the HLS statement plainly says "does not discriminate", rather than "does not discriminate unless we feel it's a better idea to".
12.9.2005 1:08pm
Houston Lawyer:
Justin, great pressure is brought to bear on management of large lawfirms to increase the number of minorities and women in their ranks. Many of their prospective clients demand to know the minority and female makeup of the attorneys at those firms. I think it's safe to say that an equally talented female minority lawyer would have quite an edge in hiring/partnership decisions over a white male. I think it's safe to say that this policy won't get a firm banned from recruiting at Harvard either.
12.9.2005 1:10pm
akiva eisenberg (mail):
As a non-attorney (there are still some of us out here), I am puzzled by the direction of this debate. The focus seems to be as to whether or not Harvard can keep the recruiters off campus. Lets grant that right. The question is, can the government now withhold funding?

I do not think that the government is currently claiming absolute privilege under Article I, sec. 8 to force Harvard to unconditionally accept military recruiters, although, as noted in the discussion, they might actually prevail on those grounds. What they are saying is: You receive our money because you are useful to us. To the extent that you have lost your utility, you have lost funding.

Could a school claim that if they prevent a donor corporation from recruiting, that said corporation is nevertheless legally obligated to continue its contributions?
12.9.2005 1:17pm
Philly lawyer:
Non-philly lawyer:
I think your point would be stronger if there were any indication that Harvard's policy was designed to exclude the military. Did Harvard implement this policy for the purpose of excluding the military? I doubt it--if Harvard loses here, they will still exclude any other employers who discriminate (in their view).

In other words, I know of no reason to think that Harvard's apparently evenhanded application of their policy is a pretext or a sham. (If it is, that'd be a whole different story.) Similarly, the policy is not designed to only exlcude the military (as a policy of "no employers who have nuclear weapons" would be). Finally, the policy is not an excuse for unbridled discretion, as your example of "only employers Prof. Tribe likes" would be.

This is a facially neutral policy. If it is being applied neutrally, and if all the Solomon Amendment requires is equal treatment, then the military loses (unless Scalia is right about the power to raise armies, a subject about which I venture no opinion).
12.9.2005 1:19pm
PersonFromPorlock:
NJ Annuitant,

Arguments from the Congress' power to raise armies ought to be greeted with great caution because of the power's almost infinite ramifications. For instance, if we take conscription as our model, there appears to be no reason why Congress could not compel young women to become pregnant to provide future soldiers.

The power to raise armies has as much potential for abuse as the power to regulate interstate commerce, even though it hasn't been abused that much -- yet.
12.9.2005 1:24pm
Solomon Skeptic:
I've avoided posting anyting about the Solomon Amendment on this blog, despite several opportunities, but am now blowing off steam, so excuse me for remaining off topic, but:

Why? Why are conservatives so eager to shoot down the very arguments conservatives were advancing against Clinton-era use of the spending clause in order to support a policy that has a de minimis effect on war preparedness or national security (blah, blah--I know, liberalization of the armed forces and all that; our armed forces and the global war for freedom will be just fine if Yale doesn't give JAG a fold out table in the cafeteria.)

It is as though an entire political movement is in the grips of psychosis induced by an allergic reaction to anything liberal academia happens to support.

I can see why Dan Polsby took the stand he did. He is trying to improve GMU's rankings. Improving ties to a conservative administration and to the larger movement more generally pays dividends on that end: more of his faculty get considered for admin. posts like OLC and other plum jobs in D.C. where politics and the team you join matter, and that ups the profile and influence of his law school. And I believe Todd and everyone else who signed the brief really buys into the substance of the argument. But what surprises me is the utter lack of any prominent dissent on the right.

Conservatism used to stand for something, but lately seems to be an ideology about acquiring and using power to stick it to ideological enemies.

There: confusion and frustration vented. Back to work.
12.9.2005 1:28pm
HLSbertarian:
Skeptic,

Here I have to agree with you part of the way. Separate from the legal argument, I think you rightly point out the element of hypocrisy. This is indeed a silly rallying flag for true conservatives. However, while we're on the policy subject, lets also give some credence to the idea that Harvard's stand is just as silly.

I've yet to hear a convincing argument about the harm of allowing discriminating employers on campus, at the very least when these employers have no choice in their own policies. As long as the military is forced to discriminate, what's wrong with allowing them full access to recruit those of your students tat can legally join it.

Is the mere presence of their folding table so repugnant to progressive folks? Any more so than the fact that this policy is the law of their land?

It seems to me that it's set up a strange political situation, where it's not in the long-term ideological interests of either side to win on grounds on which they're likely to prevail.
12.9.2005 1:43pm
Public_Defender:
The federal government can comply with the non-discrimination policy, it just choses not to change the policy. Plus, as has been argued in other threads, the military brass fought hard for the right to maintain their bigotry against gay people. It would be cowardly for the military to hide behind Congress' skirt on this one.

On the statutory issue, I find that statutory arguments are almost always more useful than consitutional arguments.

The Constitution gives the government a great deal of power. To win a constitutional argument, you need to convince the court that the government exceeded the broadest reach of its power. To win a statutory argument, you need only show that the legislature has chosen to prevent the government from acting against clients like yours.

In addition, judges on both the right and the left generally find it easier to imprint their own views on very broadly written constitutional provisions than on more detailed statutory provisions.
12.9.2005 1:48pm
KeithK (mail):
Let's say for the sake of argument that the Court decides in favor of FAIR on statutory grounds. What would happen? I think it's quite clear that Congress did not intend for the law to be applied this way - the Solomon Amendment was specifically designed to require schools receiving federal funds to allow military recruiters. So in the face of such a ruling Congress would very likely pass legislation to invalidate the ruling. FAIR would sue again and we'd be right back in the same place, dealing with the Constitutional arguments.
12.9.2005 1:49pm
Justin (mail):
Houston says:

Justin, great pressure is brought to bear on management of large lawfirms to increase the number of minorities and women in their ranks. Many of their prospective clients demand to know the minority and female makeup of the attorneys at those firms.

::giggles:: And *those* people aren't over 90% white?

Come on. The argument is still absurd. Discrimination by its very nature involves one group of people favoring that group over another. I'll buy that if the NAACP had an African American only hiring policy, as someone seems to (falsely) imply, that this is discrimination. I'm not going to buy that at a 30-50 lawyer outfit DC law firm with 0 black lawyers, 0 hispanic lawyers, and 1 asian lawyer, that these people are "discriminating" against white people with their affirmative action policy. Cuz clearly them minorities secretly control the process from up high.
12.9.2005 1:53pm
Davod (mail):
Harvard's argument is with the Congress. It is a law.
12.9.2005 1:54pm
Justin (mail):
I should, btw, point out that I'm skeptical of affirmative action from a policy perspective. I think it is a bandaid where surgery is needed, and that the bandaid prevents real surgery from taking place. I think too often it helps middle and upper class minorities at the expense of poor minorities (for instance, read Richard Rodrigeuz's book, the only anti-affirmative action book that sounds remotely persuasive, Hunger of Memory). Plus, I think it creates, though unintentionally, a "conservative backlash" which promotes racism amongst white people.

That being said, that it "discriminates" against white people is an argument, coming from a white male today, that shows such male's steadfast refusal to step out of his place of privilige and examine how external forces come to bear, both present and past, on people not as fortunate to be able to get away with being so painfully selfish as they.
12.9.2005 1:57pm
HLSbertarian:
Justin,

Are you so sure that this argument is necessarily coming from white males and that these white males are all looking down on you from their selfish place of privilege?

You may think it's silly to equate discrimination going different ways. Others here may think it's silly for words to have different legal meanings as applied to different people.

Semantics aside, whether you like it or not, "discrimination" has a meaning, and the real issue is whether some discrimination can be worthy, and if so, how to distinguish it.
12.9.2005 2:07pm
Justin (mail):
Yes, I do.

"Semantics aside, whether you like it or not, discrimination has a meaning."

That is, of course, incorrect. That is like saying, "the use of variables aside, 15x has a meaning, and the real issue is whether 45 is a good value or not." The word discrimination has a RANGE of meanings depending on usage, and the broad usage you use here is at best convienent and self-serving, at worst an intent to discriminate in its own sense.

I find it amusing that you use "semantics" in a sort of colloquial "trivial" sense rather than its ACTUAL meaning, which is, of course, word choices, which is the HEART of the argument according to you. Way to assume the conclusion.

I stand by my point. Nozick himself presupposes in his argument that the distribution of capital be fair in its first instance, before redistribution becomes immoral. To argue that discrimination includes white people favoring underrepresented minorities against white (and asian) people in order to select people that they think will succeed (i.e., affirmative action in the way it's "supposed to work", upon which "wahhh it discriminates against John Smith the Fourth" does not require us to assume otherwise) and to combat past invideous discrimintaion is perfectly compatable with liberterianism, even Nozickian liberterianism, and even thus when mandated by the government. And as such, it cannot mean "discrimination" in the way that the nondiscrimination statement (and the 14th Amendment) intended that meaning to be interpreted.
12.9.2005 2:16pm
HLSbertarian:
Justin,

Alright, you've got me on my lack of care in making the semantics point. But on the larger issue: The problem isn't that they're picking people who they think will succeed. In fact, the problem is that they're picking people, at least partly, on other bases.

And I can't buy your assumption that the equally or more qualified John Smith IV deserves no sympathy based on the existence of the other three John Smiths. But more importantly, affirmative action is a shorcut that also often weeds out John Smith I.

I won't argue Nozick with you. I'm not well-read enough in him, and don't necessarily buy into all of it. However, I will take issue with the assertion that the 14th Amendment is incapable of setting forth a general prnciple, and instead is tied, according to you, not only to the particular social balance existing at its inception, but also to the century and a half of progressive social theory that's developed since. (Not that the 14th Amendment is realy at issue here - but if we're going to use it as a guidepost...)
12.9.2005 2:32pm
Andy Freeman (mail):
> Similarly, the policy is not designed to only exlcude the military

What other organizations have legally mandated don't ask/don't tell?
12.9.2005 2:34pm
The Human Fund (mail):
Justin,

While I appreciate your point that it's amusing to say "semantics aside" when discussing the meaning of a word, I haven't been able to find any authority that suggests that the term "discriminate" is limited to actions by a majority against a minority. Certainly one might argue that discrimination in favor of a minority can be a good thing. But, to say that the choice to favor a minority is not discrimination is to assign the term discrimination a different meaning from any authority I've been able to find.
12.9.2005 2:37pm
WPL:
Justin:

The 14th Amendment does not contain the word discrimination or any variation therof. It does prohibit denying any person equal protection of the laws. However, I fail to see how that clause can be used to bolster your argument in any manner.
12.9.2005 2:41pm
M. Faridi (mail):
While listening to the oral arguments of Fair v. Rumsfeld on oyez.org, I noticed a joke/Freudian slip by Roberts. When Stevens asked Paul Clement (Gov lawyer) a question about what would the government's position be if the military recruiters were allowed equal access, meaning an equal facility to recruit but only on the undergraduate campus instead of the law school campus, Roberts interrupted and said, "like separate but equal."
12.9.2005 2:45pm
Alaska Jack (mail):
Justin -

I'm curious -- the above commentors have noted that "discriminate" means, simply: to choose, favor, or value one thing above another.

You vehemently insist that this is not so, that HLS "choosing" or "favoring" minority applicants over whites is not an example of "discrimination."

So here's my question: Could you please give us your dictionary-style (that is, sans polemics) definition of what discrimination *is*, together with a usage example? Perhaps that would help us understand your argument.

- AJ
12.9.2005 2:51pm
Public_Defender:
Harvard's argument is with the Congress. It is a law.
Once again my response:
The federal government can comply with the non-discrimination policy, it just choses not to change the policy. Plus, as has been argued in other threads, the military brass fought hard for the right to maintain their bigotry against gay people. It would be cowardly for the military to hide behind Congress' skirt on this one.

Another commenter asks:
What other organizations have legally mandated don't ask/don't tell?
Few, if any. The military is one of the few organizations left that clings so hard to their bigotry that they think that gay people are somehow worse lawyers than straight people. My guess is that the law school policies pushed some reluctant firms to change their policy.

P.S. The statutory argument is interesting, but I agree that the law schools should lose the constitutional issue.
12.9.2005 3:01pm
Steve:
I have seen a lot of people say that "don't ask, don't tell" is a creature of federal statute, not simply a military policy. While I have no reason to doubt this, could anyone provide a statutory cite?
12.9.2005 4:14pm
The Human Fund (mail):
Since I don't really feel like reading the whole statute, I don't know for sure whether this is the relevant statute. Here's a link, in case it is:

http://dont.stanford.edu/regulations/pl103-60.pdf
12.9.2005 4:31pm
A JAG Lawyer:
10 U.S.C. § 654
12.9.2005 4:32pm
Mikeyes (mail):
I question Public Defender's statement that "the military is one of the few organizations left that clings so hard to their bigotry that they think that gay people are somehow worse lawyers than straight people. (sic)" Granted that for years it was against the rules to be homosexual in the military, but the "don't ask, don't tell" rule has been in effect since the early Clinton years (as an executive order then a law) and is still the (imperfect) acknowledgement that what Barry Goldwater said ("You don't have to be straight to be in the military; you just have to be able to shoot straight.") is the most practical thing to do.

Can you quote me a serving senior officer in any branch of the service that is "clinging hard to (his/her) bigotry"? Probably not since that person would quickly lose his or her job. The military of this country is under the strict rule of the civilian government including both the executive branch (which directs it) and the congress (which pays and enables the military under the constitution.)

Harry Truman integrated the armed forces in 1948 by fiat which was his right as Commander in Chief. Clinton took a timid step with his policy, but probably had a lot less opposition from the senior officers than Truman. But as C-in-C he had the ability to set things straight (no pun) by firing anyone who disagreed. Generals and admirals are too ambitious to object over such a trivial (n the context of being a general) point. Everyone else would just have to adapt.

And they have adapted. Granted, there are plenty of service members who object, just as there are in other organizations and cultures, but the average age of the service is in the range of 24 years old and the polls show that that age group is very accepting of alternative lifestyles. In addition the dinosaurs that fought the change in the 80's and 90's have all left by now and if this president stated that sexual orientation is not an impediment to being a service member, it would be so. Of course, we would also be fighting terrorists with flying pigs considering the chances of that.

The discriminator is not "the military", but the civilian government both executive and legislative branches. Since the universities look as if they are going to lose this battle, perhaps they ought to see about addressing their concerns at the source.
12.9.2005 4:41pm
A JAG Lawyer:
For an interesting look at the internal decision-making of a school that decided NOT to kick off ROTC (which is generally banned for the same reasons as JAG recruiters), check out these documents from MIT:

http://web.mit.edu/committees/rotc/

(Full disclosure: I was commissioned via Army ROTC from MIT).
12.9.2005 4:44pm
The NJ Annuitant (mail):
PersonFromPorlock --
Any governmental power can be abused, including the power of judicial review. But there never has been an abuse of Congress's power to raise an army, to the best of my knowledge. The argument, and I think it is a very good one, is that Congress has the power to raise an army, even to the point of conscripting the reluctant. Certainly , Congress has the power to withholding public funding to law schools that refuse military recruiting, when the funding was conditional on it.

In my view, symbolic speach argument really is very weak -- I cannot lawfully "speak" by refusing to pay my Federal income tax, with a view to ensuring that my family does not get the impression that I think the public revenue is being spent wisely.
12.9.2005 4:50pm
Mikeyes (mail):
It is interesting to note that this law (10 U.S.C. § 654) acknowledges the possiblity of marriage between two people of the "same biological sex" and uses that fact as a reason for dismissal.
12.9.2005 4:52pm
RichC:
JAG:

Isn't MIT prohibited from kicking off ROTC because MIT is a land grant school?

(At least that's what people were saying back in the mid 1980s when I was a student there).
12.9.2005 4:53pm
Justin (mail):
A liberterian at Harvard law school who doesn't have a mastery of Nozick? Really????

As far as dictionary definitions and the whatnot, I submit that lawyers and judges use dictionaries as a guide, but often have to look at context and are not solely limited to the precise words of whatever dictionary. I've gotta run, so I'm not going to a dictionary search, though I'll point out nobody against me has given a dictionary definition either, simply assuming the point.

I think the safest thing to say about Harvard's nondiscriminatory clause is that it was drafted by people who fully were aware that it did not apply to those with affirmative action programs, and that seems like an obvious enough reason to give Harvard the simple and obvious benefit of the doubt that when they said "discrimination", they did not and do not consider Affirmative Action discrimination.
12.9.2005 4:56pm
A JAG Lawyer:
RichC -

When discussing "Sever Ties to ROTC" and "Remove ROTC from Campus" as Possible Options (http://web.mit.edu/committees/rotc/report-5.html), the committee does not mention that argument. That does not mean, necessarily, that it's not true. But I never heard it.
12.9.2005 4:59pm
A JAG Lawyer:
RichC -

Upon some Googling, I've found several articles which do reference the article you make. Here's one example:

http://www-tech.mit.edu/V110/N46/rotc.46n.html

The tenor of the quotes suggests that those who wanted to get rid of ROTC did not see the land grant element as a particularly difficult obstacle. But it does change the calculus somewhat, and I appreciate that you brought it to my attention.
12.9.2005 5:04pm
A JAG Lawyer:
the argument you make, that is.
12.9.2005 5:05pm
TC (mail):

Few, if any. The military is one of the few organizations left that clings so hard to their bigotry...


But isn't that the point of this posting: that Harvard still allows employers who practice bigotry -- or at least the types of discrimination that they claim to be against?


Yet in direct violation of this policy, the Law School's Office of Career Services forwards job opportunities that are available only to certain students on the basis of race, color, or ethnic origin. In just last week's news update from the Office of Career Services, no fewer than four announcements violate the non-discrimination policy. One diversity fellowship requires that " [t]he individual [selected] must be a member of a racial or ethnic minority group." Another fellowship restricts eligibility to "persons who are... African American, Latino, Native American, Alaskan native, Asian or Pacific Islander."
12.9.2005 7:31pm
Tom Tildrum:
"The military is one of the few organizations left that clings so hard to their bigotry..."

This assertion is untrue in the legal-hiring context. For all of the lip service the large law firms pay to diversity, their own NALP data shows that openly gay partners are almost nonexistent. The law schools' nondiscrimination policy is essentially just empty verbiage, and as long as a hiring firm is willing to mouth those words, the law schools don't care whether the policy is ever actually respected in practice. For that matter, women and African-Americans have a much easier time achieving positions of power in the military than in the law firms. There is nothing principled in the law schools' position.
12.9.2005 7:50pm
KeithK (mail):
From dictionary.com:

dis·crim·i·nate
v. intr.
1.
1. To make a clear distinction; distinguish:
discriminate among the options available.
2. To make sensible decisions; judge wisely.
2. To make distinctions on the basis of class or category
without regard to individual merit; show preference or
prejudice: was accused of discriminating against women;
discriminated in favor of his cronies.


v. tr.

1. To perceive the distinguishing features of; recognize
as distinct: discriminate right from wrong.
2. To distinguish by noting differences; differentiate:
unable to discriminate colors.
3. To make or constitute a distinction in or between:
methods that discriminate science from pseudoscience.


The primary meaning of the word is to make distinctions between choices. Over time the word has gained the connotation of unfair discrimination on the basis of things such as race/sex (2nd intr. defn.) Regardless, the second definition makes no reference to minorities or privileged status. According to this definition, favoring a black person over a white person because of race is discrimination because the choice is made on the basis of a class rather than merit. Whether or not you feel that such discrimination is good policy does not change the fact that it is discrimination.
12.9.2005 8:36pm
Jim Rhoads (mail):
Justin says:


As far as dictionary definitions and the whatnot, I submit that lawyers and judges use dictionaries as a guide, but often have to look at context and are not solely limited to the precise words of whatever dictionary. I've gotta run, so I'm not going to a dictionary search, though I'll point out nobody against me has given a dictionary definition either, simply assuming the point


This is a convenient construct, but, I think, lacks precision as legal reasoning.

This approach would have made the Humpty Dumpty in Alice In Wonderland proud:


'And only ONE for birthday presents, you know. There's glory for you!'

'I don't know what you mean by "glory,"' Alice said.

Humpty Dumpty smiled contemptuously. 'Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'

'But "glory" doesn't mean "a nice knock-down argument,"' Alice objected.

'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean -- neither more nor less.'

'The question is,' said Alice, 'whether you CAN make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master - - that's all.'


How does Justin's reasoning differ?
12.9.2005 9:12pm
Andy Freeman (mail):
>>What other organizations have legally mandated don't ask/don't tell?
>Few, if any.

Therefore the law school's policy DOES single out the military.

Whether or not the military lobbied for the restrictions is irrelevant because the military didn't make the rule and can't unilaterally change it.

However, it was nice to see that the anti-military attitude continues to be "not existent". Next time you might want to close with "I support the troops".
12.9.2005 9:40pm
SLS 1L:
How does Justin's reasoning differ?
I took graduate seminars on semantics in college, and one thing I learned is that linguists ("people who study the structure of language professionally", not "translators") regard dictionaries as junk. The meanings of words used by actual humans are far too varied and complicated to be reduced to simple formulas such as the one used in dictionaries. They're usually a good rough guide but can't get you anything near the precision seen in actual use.
12.9.2005 9:45pm
Jim Rhoads (mail):
SLS:

So how do you believe the "linguist" would define the word "discrimination" in the context of, for example, Title VII of the Civil Rights Act or 8(a)(3) of the National Labor Relations Act?
12.9.2005 11:20pm
Matt22191 (mail):
"The meanings of words used by actual humans are far too varied and complicated to be reduced to simple formulas such as the one used in dictionaries."

Perhaps that's true. But it seems to me that Justin is saying one or both of two things: (1) that we should accept his definition of "discrimination" (viz., that it only includes discrimination against members of a group by members of some other group) because it's the commonly understood meaning of the word; or (2) that among lawyers and judges the word "discrimination" has a different meaning — the meaning he attributes to it — than it has in the common parlance, and therefore we can't fault a bunch of Harvard lawprofs for using it in that sense.

I don't buy the first proposition. I am not familiar with what I understand to be Justin's (approximate) proposed definition of discrimination. Neither are the other commenters here, that I've seen. That being the case, I simply think he'd be factually wrong to assert that his definition of the word (or what I take to be his approximate definition, at any rate) captures its common meaning.

As to the second proposition, again, I think it's factually untrue. I simply don't think it's true that judges and lawyers generally don't consider "benign" or "reverse" discrimination to be discrimination. See Justice O'Connor's majority opinion in Grutter v. Bollinger:

"[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Palmore v. Sidoti, 466 U.S. 429, 432 (1984). Accordingly, race-conscious admissions policies must be limited in time.


Why must there be a time limit on race-conscious admissions policies that favor certain minorities at the expense of others? Because they constitute "discrimination based on race" and, as such, are contrary to "[a] core purpose of the Fourteenth Amendment."

Even if dictionaries are junk, I still think Justin's argument(s) fail(s).
12.10.2005 2:57am
Roger Schlafly (www):
Someone should send Harvard a job listing for a fellowship available to gays only. Or maybe a job listing that says applicants are expected to keep their sex lives to themselves. If Harvards accepts the ads, it might shed some light on their practices.
12.10.2005 4:25am
Luthien (mail):
I'm not a lawyer, so many of the legal arguments escape me. That said, here's a potporri of my thoughts on some of the above points:

Affirmative action: I oppose it as currently applied, with need determined by race rather than economics. Poor white students suffer from the same "lacks" as do their racial minority counterparts: bad schools, etc. But they are not afforded the same opportunities provided by colleges and universities to "level the playing field"vis-a-vis quotas, grants, etc. That's racism to me.

Gays in the Military: I believe that gays can serve just as honorably as their heterosexual counterparts and should be allowed to do so without having to hide their sexual orientation.

FAIR vs the Solomon Act: university policy does not trump federal law. That law does not require that said universities MUST allow the military to recruit on campus; it merely says that they will be denied federal funds if they do so. If they are so high-minded that their tender sensibities demand barring the military from their campuses, then they should stand on those principles and refuse the money. That would be the ethical thing to do. But, no, they believe their policies should supercede federal law and I just don't see the Supreme Court upholding that argument. As I said, I'm not a lawyer, but that just seems like common sense to me.
12.10.2005 10:09am
Jack John (mail):
Whether or not you feel that such discrimination is good policy does not change the fact that it is discrimination.

True, but it does change whether it is "2. To make sensible decisions; judge wisely." or "2. To make distinctions on the basis of class or category
without regard to individual merit; show preference or
prejudice: was accused of discriminating against women;
discriminated in favor of his cronies." It does change whether the discrimination is wise and sensible. If it is wise and sensible discrimination, then what exactly is your problem? Are you admitting that you are unwise and have no goddamn sense? It seems Justin has a damn good argument, based purely on the dictionary. Any, by the way, I HATE Justin.
12.10.2005 10:45pm
Jack John (mail):
Also, mere discrimination is not unconstitutional. Were it, then economic regulation distinguishing optometrists from opthamologists would be unconstituional. It is not. See Williams v. Lee Optical.
12.10.2005 10:49pm
David M. Nieporent (www):
Justin says:
The better answer in my view is that affirmative action programs do not "discriminate" against white people.

"When I use a word, it means just what I choose it to mean -- neither more nor less."
The answer may be "better" in that it allows Justin to finesse an indefensible position, but it has the slight disadvantage of being clearly false. Affirmative action programs definitionally discriminate against white people.
12.11.2005 3:17am
John Rosenberg (mail) (www):
If Justin's view of the meaning of "discrimination" were widely accepted, then civil rights laws banning discrimination wouldn't ban anything. Oh, right. It is accepted, and they don't.

Almost everyone (maybe actually everyone) who supports the view that Harvard's academic freedom/1st Amend. rights trump federal law (both the don't ask/don't tell statute and the Solomon Amendment) also supported the right of the fed. government to revoke Bob Jones University's tax exemption because BJU's policy against interracial dating violated "public policy" -- not law, but public policy, as interpreted by the IRS. Someone up-thread complained about conservatives being inconsistent. If they are, they can't hold a candle to this.

I've blogged about this a couple of times on www.discriminations.us.
12.11.2005 9:39am
yaniv (mail) (www):
want to learn more about access,
or other subjects that interest you,
you can see our free lessons,
we have hundreds of free lessons in www.wisetrainer.com
try us its free,
you can even put our free movies in your site
12.14.2005 1:06pm