pageok
pageok
pageok
Law School Responses to FAIR v. Rumsfeld:

From the George Mason Law School website:

March 6, 2006: By an 8-0 margin, the Supreme Court decided that Congress can give the military a statutory right to recruit prospective lawyers at law schools whose universities receive federal aid, grants or contracts. Rumsfeld v. FAIR, No. 04-1152.

The Court's decision closely follows the amicus brief filed by members of the George Mason law school community — the only members of the national community of law schools to brief the case in behalf of the armed services. Several dozen amicus briefs were filed on the losing side (including briefs in behalf of the professors at Yale University, Harvard University, Columbia University, New York University, Cornell University and the University of Pennsylvania), arguing that the Solomon Amendment's requirement of equal access for military recruiters was unconstitutional under the First Amendment.

The George Mason brief was signed by Dean Daniel Polsby and Professors Nelson Lund and Joseph Zengerle in behalf of four other George Mason professors, seven George Mason law students, and some eighty professors and students from other law schools. Lead counsel on the George Mason brief was Will Consovoy, '01, along with Andrew McBride and Wiley, Rein & Fielding.

Dean Dan Polsby of George Mason Law School comments to Powerline:

This is really a stinging rebuke, not only to FAIR but to an entire industry that has become complacent and self-indulgent. Many law professors really do believe, with the late Justice Brennan, that their own strongly-held policy preferences are all encoded somehow in the Constitution. This is a timely reminder that it just isn't so.

Meanwhile, from Georgetown's web site, solomonresponse.org:

The Supreme Court's opinion in Rumsfeld v. FAIR is a call to arms to law school administrations across the country to vocally demonstrate their oppostion to the military's "Don't Ask, Don't Tell" policy. Please visit the Protest & Amelioration section for more information.

Update:

Avery Katz of Columbia writes (in response to Dean Polsby's comment) to clarify that the Columbia law faculty brief (as distinguished from the Columbia University brief), as well as a similar brief by the Harvard law faculty (again, distinguished from the University), "was not based on any constitutional issue, but instead made a statutory argument based on the text of the Solomon amendment itself." The opinion, of course, considered and rejected that statutory argument as well.

therut:
Are they going to recognize their 2nd amendment rights in their call to arms?????????? No of coarse not. They will make a spectacle of themselves with flamboyant protests and mooning maybe. "Call to arms" ---------it makes me chuckle.
3.6.2006 9:21pm
Dave Hardy (mail) (www):
I believe it was Dean Polsby who suggested that, upon losing the case, there is only one ethical principled thing for the universities to do...

Reject the federal money, showing that their ethical principles come before their pocketbooks!

We're waiting, we're waiting....
3.6.2006 9:35pm
JLR (mail):
It was very wise of Chief Justice Roberts and the Court to allow same-day release of the oral arguments for Rumsfeld v. FAIR. After listening to the arguments, it was clear that no Justice was willing to even seriously consider siding with the respondent.

The most compelling rebuttal to FAIR's position made during oral arguments was, in my opinion, made by Justice Breyer, who pointed out that the remedy for speech one didn't like (that didn't fit into categories like incitement) wasn't less speech, but more speech.

When many major universities come out on the side of restricting speech simply because it is speech that isn't appreciated on the campus by many of its faculty, one realizes how far "liberal education" has gotten away from what it means to be truly "liberal" in the great Anglo-American tradition.

Contemporary self-styled "liberals" are not truly liberals. They are, in fact, left-wing authoritarians.

And such left-wing authoritarianism was revealed and strongly rebuked by a unanimous 8-0 Supreme Court today.
3.6.2006 9:36pm
SLS 1L:
GMU had a pro-administration brief in that case? Well, my opinion of GMU Law just dropped a few dozen notches.
3.6.2006 9:38pm
TO:
Oh, the irony.
Compare this:

This is really a stinging rebuke, not only to FAIR but to an entire industry that has become ... self-indulgent.

with this:

The Court's decision closely follows the amicus brief filed by members of the George Mason law school community -- the only members of the national community of law schools to brief the case in behalf of the armed services. Several dozen amicus briefs were filed on the losing side...

The George Mason brief was signed by Dean Daniel Polsby and Professors Nelson Lund and Joseph Zengerle in behalf of four other George Mason professors, seven George Mason law students...


But this is just nitpicking. I'm happy with the decision for the sole reason that it's a slap to the face of a bunch of arrogant and insufferable law professors. Just read the wackiness in this post at Balkinization from a little over a year ago. Perhaps now these people will take notice of the fact that there are two branches of government that can properly consider people's feelings and policy preferences....
3.6.2006 9:43pm
Trevor Morrison (mail):
The main argument in the George Mason brief was that the case ought to be decided on Spending Clause grounds, without really reaching the First Amendment itself. That is, the brief was principally devoted to arguing that there's a critical and dispositive difference between legislation that establishes conditions on the receipt of federal funds and legislation that directly prohibits or mandates certain actions.

The Court did not decide the case on that ground. Instead, it decided the case directly under the First Amendment, stating that there is essentially no First Amendment difference between this sort of Spending Clause legislation and a direct prohibition.

Now, it's true that the George Mason brief supported the government, and the government did win. It's also true that the Mason brief includes a brief secondary argument, near the end of the brief, advancing a First Amendment argument like the one the Court embraced today. But the main argument advanced by the Mason brief, occupying the vast majority of the argument portion of the brief, was not adopted. If anything, its animating premise received a kind of silent rebuke.

Yet George Mason now proclaims that "[t]he Court's decision closely follows the amicus brief filed by members of the George Mason law school community." At best, that claim is misleading by omission.
3.6.2006 9:52pm
Anon Y. Mous (mail):
SLS 1L, please explain why supporting the military in this case is pro-administration? i am not a fan of "W" but i thought banning the military from recruiting at institutions which are supported by tax dollars was wrong. i agree with JLR and justice breyer in that more speech would accomplish the goal of a sexual-orientation blind military better.
3.6.2006 9:54pm
Anon Y. Mous (mail):
SLS 1L, please explain why supporting the military in this case is pro-administration? i am not a fan of "W" but i thought banning the military from recruiting at institutions which are supported by tax dollars was wrong. i agree with JLR and justice breyer in that more speech would accomplish the goal of a sexual-orientation blind military better.
3.6.2006 9:54pm
frankcross (mail):
Good decision, but Dean Dan Polsby does not appear to be a good winner
3.6.2006 9:55pm
anon) (mail):
He doesn't appear to be a good lawyer, either. I mean, he could have just said "the court accepted our position" (though I don't think it did, actually.) He could have explained the court's reasoning.

No.

He has to go off on some lay person political tangent to attract donors to his TTT. I guess if you can't impress people with your academics, play to their politics.
3.6.2006 9:57pm
anonymous coward:
"And such left-wing authoritarianism..."

We've seen some notable examples of "left-wing authoritarianism," and it did not quite look like private universities forcing military recruiters off their campuses on the grounds that the military won't hire homosexuals--or did it?

I'm still not sure why we should cheer expanded state power over private institutions (my understanding is that the SCOTUS says the government can require recruiters to have a spot even if the universities turn down state funding), even if it is the right decision on the law and (perhaps more relevantly for Polsby and some others) sticks it to the irritating liberal establishment.
3.6.2006 10:09pm
anon) (mail):
What I don't get is why people care so much about this. All of the JAGs don't conduct actual recruiting at the law schools. Instead, they send out officers who, during OCI, tell people how to apply. Then the students fill out an application and call up an SGA to schedule an interview.

In this way, even TTT-students can get equal consideration as students that go to real law schools, and a GMUer is treated the same as someone did passably well on their LSATs. But, no student actually is discriminated against, and since the services don't actually use the schools as a real means of recruiting, it isn't as if they gain anything by this, anyway.

But, it has been good for fundraising. Lay people have actually donated money to this stupid political battle, which played out in the courts. They don't understand the resolution of it, which is just as good, as I have another pet cause I want to raise money for.
3.6.2006 10:12pm
AnonPost (mail):
Gerry,

Your hypo about the advocacy of law professors leaving wounded soldiers with no lawyers and no doctors is interesting. Consider two possible responses:

1. Is there any evidence that FAIR's position has prevented the military from deploying an adequate number of doctors or lawyers to the field?

2. What is more likely: that FAIR prevented a doctor who wanted to join the military from doing so, or that the military discharged a doctor from service for being gay? I doubt that there are any good statistics on this point, but it seems that if you are going to make arguments against FAIR based on the military's need to recruit qualified officers and enlistees, you also need to think about the wisdom of military policies that discharge qualified officers and enlistees who would prefer to remain in uniform. Recruitment is important, but so is retention.
3.6.2006 10:35pm
anon) (mail):
I don't think that the facts here matter. I think what is more important is that a great blow was stuck for the duty of the military to declare that it is free from dangerous homosexuals who will sell pornography and stuff and try and convert people to the wrong religion or communism.
3.6.2006 10:44pm
Bruce Hayden (mail) (www):
AnonPost

To start with, DADT was not an issue in the case, at least as far as the Justices were concerned. You seem to be suggesting that the courts override policy decisions made jointly by the other two branches through the political process. Both Soloman and DADT were political decisions made by the political branches of government utilizing their core Constitutional powers and involving the military. The Supreme Court is not about to intervene.

Whether or not the military is making their recruting targets for JAG officers is likewise irrelevant. The political branches are making sure that they will be able to, and the only way to change that is through the political process. This is a policy decision made by the political branches, and the Court isn't going to intervene.
3.6.2006 10:57pm
Jason Fliegel (mail):
I particularly like the out-of-nowhere swipe at the late Justice Brennan. Classy!
3.6.2006 10:59pm
Commenterlein (mail):
If the dean of my school was good friends with the Powerline loonies I'd be writing job applications.
3.6.2006 11:09pm
anon) (mail):
I guess it is sort of funny, in a pathetic way, that the dean of a law school, who probably could have gotten a job at a real firm, is sucking up to the PowerWhiners.

But, here is my challenge. Anyway, since I don't think that the GMU dean served in the military, I don't think he cares to much about America.

Also, why doesn't he encourage law students to forgo JAG and sign up as enlisted men. This would be a true act of patriotism.
3.6.2006 11:15pm
Jake:
The press release does seem to be unnecessary (although the general lefty reaction has been fun to watch, I don't think conservatives should have enough practice to be good winners by now). I don't quite understand the swipes at the GMU student body: a 75th-50th percentile LSAT breakdown of 166-162.5 might not be Harvard material, but it's nothing to be ashamed of.
3.6.2006 11:16pm
anon) (mail):
What!?!? A LSAT of 166 is shameful. People with class and intelligence do better, and if any member of my family got such a retarded score, we would kick them out. The LSAT isn't hard. It is about a little practice and discipline and not boozing it up! If they took the law seriously, they would have done better. But they don't. They were lazy. They drank. The kids at GMU chose to do badly on the LSATs, and that is why their school is a TTT, and their dean goes on PowerWhine and complains about Justice Brennan.
3.6.2006 11:18pm
snowball (mail):
Yet George Mason now proclaims that "[t]he Court's decision closely follows the amicus brief filed by members of the George Mason law school community." At best, that claim is misleading by omission.

Trevor:

Why do you have to intrude on GMU's little party? The Court struck a deadly blow against the overwhelming influence of a small minority and in support of the most powerful military the world has ever seen. And GMU was there to lend moral support. They should be proud--they beat the odds!

I think GMU should change its motto to "George Mason: The Discriminating Law School."
3.6.2006 11:25pm
anon) (mail):
Snowballer, As has been demonstrated time and time again, this decision has absolutely no effect, positive or negative upon the military. This is purely a political victory. (Also, if you have never served in the military you are not qualified to opine, and I question your patriotism.)

I got an idea. Because GMU has such a hard time attracting donors (probably a lot of bitter alums), maybe the dean of GMU could set up a tip jar on PowerWhine.
3.6.2006 11:28pm
GA Thinker:

What!?!? A LSAT of 166 is shameful. People with class and intelligence do better, and if any member of my family got such a retarded score, we would kick them out. The LSAT isn't hard. It is about a little practice and discipline and not boozing it up! If they took the law seriously, they would have done better. But they don't. They were lazy. They drank. The kids at GMU chose to do badly on the LSATs, and that is why their school is a TTT, and their dean goes on PowerWhine and complains about Justice Brennan.


Wow, that attitude speaks volumes doesn't it?
3.6.2006 11:30pm
Hei Lun Chan (mail) (www):
A LSAT of 166 is shameful. People with class and intelligence do better

At the risk of giving you another opportunity to embarrass yourself, what is the link between whether a person has class and how well he scores on the LSAT?
3.6.2006 11:32pm
anon) (mail):
Thank you for your support, GA Thinker. As you know, I care about personal responsibility and I care about America.

Someone that gets a low LSAT score has not taken personal responsibility. Someone that gets a low LSAT score and then thinks that they have a right to serve their country -- as an officer no less -- is not just hurting themselves, but hurting American and freedom!
3.6.2006 11:32pm
bluecollarguy:
"Also, why doesn't he encourage law students to forgo JAG and sign up as enlisted men. This would be a true act of patriotism."


My nephew is a Major in the Marine Corps. Many moons ago I was an enlisted man in the Army. Could you explain to me why I was a true patriot and my nephew isn't?

3.6.2006 11:33pm
GA Thinker:
Actually anon, I was mocking you.

Your "pithy" comments seem as closed-minded as the opinions and people you hold in such low regard.
3.6.2006 11:34pm
anon) (mail):
GA, Well, I didn't think that you were mocking me. In fact, I thought that you were supporting me, because in times like these, a lot of people must support the cause of freedom and liberty!

But, to address the substance of your post.

  • First of all, I did not take a position on closed or open-minded people. To say that I hold them in low (or high) regard is a lie.

  • Second of all, my comments are not pithy. You are probably saying that because you are jealous.

  • Third, I don't really think I took a position on given opinions. Indeed, I respected the litagative process. It was only when people started whining on… where else… Powerwhine, that I started to think that certain legal positions were actually thinly-veiled fundraising activities.
  • 3.6.2006 11:38pm
    Lev:
    What is the score range for the LSAT these days?
    3.6.2006 11:40pm
    TO:
    There's no need to trash GMU like this with the LSAT comments and the "TTT" stuff. That's about the same thing as an ad hominem attack, but on an institution.

    The dean's comments are a little bit strange, but taking a swipe at Justice Brennan in the comments of a blog isn't quite the same thing as doing so in a press release.

    And I take back what I said earlier about the press release. A dean's job is to promote the school and raise money. When you file an amicus brief in the Supreme Court in a way that stands out from other law schools, and your position wins unanimously, that's cause for very public celebration. To call a dean's public statements "thinly-veiled" fundraising activities is to say that you've been fooled by the veil. What else do deans do?

    The dean's just doing his job.

    So where's the venom coming from?
    3.6.2006 11:44pm
    anon) (mail):
    Lev, The LSAT scores range from 120 to 180. 170 is passing.

    I don't think GMU's position won. If I recall correctly, GMU's position relied on the spending clause, so to say that its position won is a bit of a stretch. In fact, it might not be true.

    What is wrong with making fun of a school where the students all wish they went somewhere else. I guess in your politically-correct world, nobody will ever make fun of anything, even an state-run institution. I guess, to you, big government is scared.

    It could attract brighter students if it wanted to. Instead, the dean goes on Powerwhine.
    3.6.2006 11:50pm
    snowball (mail):
    When you file an amicus brief in the Supreme Court in a way that stands out from other law schools, and your position wins unanimously, that's cause for very public celebration.

    Umm, dude, as Trevor Morrison explained above, the GMU brief's arguments were not relied upon by the Court. So their position didn't affect the outcome of the case at all, unless GMU's "position" was "We want the Government to win no matter what argument it advances."

    Just what you'd expect from the intellectual heart of legal libertarianism, right?
    3.6.2006 11:55pm
    anon) (mail):
    Snowball, Once again we agree. It is a dangerous lie to say that GMU's argument was adopted by the courts. To spread such a lie hurts freedom and democracy and liberty and Bambi.
    3.6.2006 11:57pm
    snowball (mail):
    Anon:

    Don't think you can get away with your earlier assault on my patriotism, sir!

    I'll have you know, sir, that I have extensive military experience. I played Risk and Stratego as a child, and GI Joe was my favorite cartoon. So there!

    And you should also know that I own every Lee Greenwood album. So put that in your pipe and smoke it, sir!
    3.7.2006 12:05am
    anon) (mail):
  • GMU is a libertarian school because it is part of the state. All of its professors are state employees. Its budget is set by the legislature. Many of its students, unable to get jobs at firms take jobs working for state governments.

  • GMU is a libertarian school because it filed an amicus brief suggesting that the federal government can force schools to allow the government to recruit bureaucrats on campus.

  • GMU is a libertarian school because the bible tells it so.
  • 3.7.2006 12:08am
    Kovarsky (mail):
    I can't decide which comment is more vile and droolng-stupid:

    from JLR: Contemporary self-styled "liberals" are not truly liberals. They are, in fact, left-wing authoritarians.

    But I really like JLR, so I'm going to go with this one:

    from anon): What!?!? A LSAT of 166 is shameful. People with class and intelligence do better, and if any member of my family got such a retarded score, we would kick them out.

    Anon}, no offense, but you've never exactly lit up the IQ register in any post I've ever seen you make, so I'm not sure you or your family's LSAT scores mean all that much. The first conceit of an intelligent person is that there are many people equally or more intelligent than she is. You apparently think all these people went to yale or harvard - but I suspect more mature people will probably decline your provocative and asinine call to engage in the intellectual equivalent of measuring penis size. I'm guessing with this sort of attitude you're not going to be a particularly successful attorney or academic, but hey, assholes can still succeed in our profession.

    JLR: I like you, and you usually contribute very constructive things, but why do you say things like that? It must makes people tune you out.

    As to the substance of the decision itself, I applaud the court for trying to draw a distinction in the quite muddy territory of what constitutes expressive behavior. I'm not quite sure "inherently expressive" does the trick, but I'm pretty convinced that the menu of recruiters you allow on campus is not a constitutional issue of expressive association. I hope the court uses this to chip back at Dale, not because of the homosexual implications, but because I think people are beginning to realize that such a broad view of "expressive association" is untenable in a country where the composition of private groups have to be subject to some regulations.

    I also wonder if this doesn't send a signal on the campaign contribution/expenditure issues. I'm not aware of too many people that remain faithful to the distinction between the two, and I highly doubt jurists like Roberts and Alito are going to restore a Buckley-Valeo consensus. That being said, the first amendment skepticism that now seems to greet the idea that these sorts of things are "inherently expressive" could easily bleed - it seems - into first amendment jurisprudence on campaign finance reform.

    Also, GMU is a perfectly good law school, with a perfectly good faculty. I think people realize the dean looks silly on this whole issue (since his brief didn't seem to figure in the court's decision at all), but the idea that somehow the rest of the faculty and the student body is accountable for his remarks is not-so-smart.

    Finally, I'm really sad that Kirby Puckett just died. It's a sad day for people that love baseball.
    3.7.2006 12:20am
    JLR (mail):
    It appears the premise of "anonymous coward's" very interesting response to my earlier comment is based on an equally interesting premise regarding Rumsfeld v. FAIR.

    [First off let me make clear that you mention "state funding"; what is at issue here is federal funding (although I presume that was just an innocent mistake on your part).]

    Based on my reading of Rumsfeld v. Fair, you are correct insofar as Chief Justice Roberts makes clear that it would have been constitutional if Congress had directly imposed the Solomon Amendment requirement upon the universities. On slip. op. page 10, Chief Justice Roberts cites Speiser v. Randall, 357 U. S. 513, 526 (1958) to support the claim that, if the access requirement can constitutionally be imposed directly by Congress, then it is constitutional as a condition of receipt of federal funds.

    This brings us back to first principles. An unstated premise of your post is that it is not a governmental intrusion for the Supreme Court to strike down Congressional legislation even if such legislation is deemed constitutional after use of an accepted mode of constitutional interpretation.

    The Third Circuit simply did not get this case correct as a matter of constitutional interpretation in my opinion. There obviously is a good argument to be made on the other side; otherwise, the Supreme Court never would have taken the case as the Third Circuit never would have agreed with the respondents. However, part of judicial review is to never forget that it is a Constitution that is being expounded (to paraphrase Chief Justice John Marshall in McCulloch v. Maryland). As such, the actual reasoning of the decision is not about what is normatively good or bad, but rather about what is constitutional and what is not. And it is my belief that the Solomon Amendment is constitutional. (Technically, given the nature of the case, the Court held that the Third Circuit was wrong in believing that the Solomon Amendment likely violates the First Amendment. There is a crucial difference between the two, but I won't belabor that difference in this particular blog comment.)

    My original post was simply approaching the case normatively, rather than descriptively. But according to a descriptive approach, the Supreme Court would have abdicated their proper role as interpreter of the Constitution if they had ignored their constitutional judgment by codifying a policy preference to circumscribe Congress's power regardless of Congress's actual Article I powers. And that to me is empirically and normatively an intolerable violation of our constitutional system.

    Regarding the normative aspect of the case alone, there is much to disagree about. In theory, universities should be free to expel who they like from job fairs. Of course, in our American governmental system, Congress has the power of the purse. It can use its Article I powers to help recruit law students into the armed services.

    The right that FAIR has opposed to that Article I power is freedom of speech. But "freedom of speech" of course is not exactly the same as "freedom of expression." As a result, a very interesting line of case law has developed over time that has some internal contradictions in it. In his opinion for the Court, Chief Justice Roberts in fact resolved a few of those contradictions silently and elegantly. For example, Chief Justice Roberts silently restored the third prong of the original O'Brien four-prong test while quietly but elegantly shoving to the side Justice Brennan's unfortunate and sadly illogical revision of the test in Texas v. Johnson, in which Justice Brennan claims the third prong of the test is also "outside" the test.

    So, is this ruling normatively good (regardless of what the Constitution says)? I'd say it is, but ultimately such choices are based on policy preferences. And constitutional interpretation is different from merely implementing one's own policy preferences.

    The key, as always, is to return to first principles. To quote Chief Justice Marshall again, "we must never forget that it is a Constitution we are expounding."

    Thanks again. :-)
    3.7.2006 12:23am
    snowball (mail):
    Kovarsky:

    Calm down. I don't think you should take the LSAT comments too seriously. I think Anon is just trying to expose a little hypocrisy among lawyers and law professors.

    As for whether the FAIR case bleeds into any other area of law--don't bet on it. This case rests on the rationale that anything goes when it comes to the military. Nothing more. It doesn't portend anything for the shape of Constitutional law to come. Even the Warren Court bought that kind of argument in United States O'Brien.

    The GMU dean's attack on (the very dead) Justice Brennan is especially obnoxious because Brennan voted with the majority in O'Brien! So he would likely have voted with the Court in the FAIR case.
    3.7.2006 12:32am
    JLR (mail):
    And Mr. Kovarsky -- you have pinpointed a lack of precision in a post of mine -- precision that was lost in the search for speed.

    Obviously, not all people who claim to be liberals are left-wing authoritarians. Many liberals are, in fact, liberals. That sounds logical to me. And based on your comment it obviously sounds logical to you as well. :-)

    I'm not sure I'd classify my unfortunately and accidentally broad generalization as "vile" and "stupid," but it certainly was careless. And I apologize for it.

    I just merely am gesturing towards what I think is an interesting political strain of left-wing authoritarianism that has pervaded many college campuses. The fact that Justice Breyer points out that the truly liberal thing to do is to fight speech with more speech, as JS Mill advocates in On Liberty (and as Justice Breyer himself advocates in his Active Liberty), underscores the true meaning of my point.

    So I apologize once again for being imprecise in order to be speedy with my comment.
    -----
    The most important thing is that you all read my 3.7.2006 12:23 am comment regarding the difference between constitutionality and whether something is normatively "good" or "bad." To reiterate the wonderful quote from Chief Justice Marshall, "we must never forget that it is a Constitution we are expounding." So I'd appreciate it if you would please read that post as well. Thank you very much.
    3.7.2006 12:33am
    Dustin (mail):
    well, anon is obviously being extremely ad hominem here, and thinks it's all funny and cute.

    Perhaps he should read the 'important note to helpful readers'

    where it says: "So please, also avoid rants, invective, and substantial and repeated exaggeration."

    Anon, I think you are being a nut. Just because you think you are funny makes you a nut. You lost, GMU won.

    A 165 on the LSAT is the 93'rd percentile. Of the 100,000 or so people who take the LSAT each year, 93,000 or them do worse than 166, the score you mention as failure.

    Either you have very high standards of intelligence (a 163 LSAT score is enough to admit one into MENSA), or you are exagerrating repeatedly. Only a select few ever take the LSAT. The people who have 166's are likely in the top few percent of intelligence with IQ's at least past 120... probably by quite a ways.

    George Mason is a law school quite unlike most. They got this one right. They get a lot of other stuff wrong. They are obviously contributing a unique and important point of view.

    I sure as hell am not the volokh Plice Department, and I'm not asking anybody to delete your insults, but you should reconsider how your comments present your views.

    Liberals (some of them) have a way of getting personal when they disagree. It's obviously desparation.
    3.7.2006 12:37am
    snowball (mail):
    Liberals (some of them) have a way of getting personal when they disagree. It's obviously desparation.

    Thanks Dustin. Now I know how to tell a liberal from a conservative!
    3.7.2006 12:45am
    Kovarsky (mail):
    JLR:

    Your comment was annoying, but not vile and stupid. I actually had the anon) comment in mind when I wrote that.

    Snowball:

    I looked at anon)'s comments about 3 times, searching for a trace of satire or sarcasm. The notion that he/she was being satirical would make a lot more sense if he were taking digs at the Harvard/Yale/Columbia side, but instead he's relentlessly bashing the GMU people people for being stupid. Even if he's kidding, he's been sufficiently un-judicious in his sarcasm/satire that I don't really feel bad for saying what I said. As someone who sadly, I think, aligns with anon) politically - I'm embarassed both for him and for people that could be perceived as agreeing with him. Since I fall into the latter category, I don't feel unjustified.

    Re: Justice Breyer. I hope that this remark starts to stem the tide that he's some thoughtless reactionary liberal. The man's oral questions are comically taxonomic, but he's so thoughtful and intelligent, and so far from what Powerline types paint him as.

    Also, Snowball. I think I agree with you, and this isn't a harbinger of change across the board in first amendment law. But I think that is only because first amendment law is notoriously compartmentalized, and is hardly consistent across categories. But if first amendment associational rights are not implicated because association like this is not "inherently expressive," in a consistent constitutional world, that proposition would seem to dramatically implicate the law on compaign finance.
    3.7.2006 12:52am
    Dustin (mail):
    snowball, you are absolutely right to point out that many conservatives also get very personal when they shouldn't.

    I can't believe I overlooked the way my sentence came across.

    Overly simple and stupid. My mistake.
    3.7.2006 1:02am
    Kovarsky (mail):
    Dustin,

    Don't indulge him. People who talk about their LSAT scores are losers.
    3.7.2006 1:10am
    snowball (mail):
    Thanks, Dustin. In agree that ad hominen attacks are found all around the political spectrum, unfortunately.
    3.7.2006 1:32am
    A Guest (mail):
    Funny how everyone keeps referring to it as "the military's 'don't ask, don't tell'" policy, when it's nothing of the sort...
    3.7.2006 1:40am
    Kovarsky (mail):
    A Guest,

    I don't get it. Why is that misleading or inaccurate.
    3.7.2006 1:48am
    snowball (mail):
    A Guest: What is it then?
    3.7.2006 1:48am
    Erick:
    It would be conress's policy as they are the ones that made the law. If the law schools at issue were really being honest about standing up for gay rights they'd be banning congressional employers from campus as well.
    Its a thinly veiled attack on an institution (the military) that has never been popular among left-wing intellectuals, and has little to do with its stance on homosexuals. They'd be looking for an excuse to ban JAGs even if DADT didn't exist.
    3.7.2006 2:50am
    John Lederer (mail):
    It is Congress' "Don't ask, don't tell" policy enacted by statute.

    It was a compromise brought on because of Clinton's campaign promise to have gays in the military. Many military officers dislike the compromise, though Colin Powell supported it when he was Chair of the JCS, because it is fundamentally dishonest, and thus corrosive of the military ethos.
    3.7.2006 2:59am
    KMAJ (mail):
    Kovarsky,

    From a layman's perspective, I agree with you, I do not think that this is a sweeping ruling but a shot across the bow of those organizations that like to accept federal funds. This case it just happened to be law schools. It basically said federal funds can come with strings attached, if the legislative branch so desires. The Solomon Amendment expressed just such a desire.
    3.7.2006 3:03am
    snowball (mail):
    Erick:

    Where do you get your information? Powerline?

    The don't ask don't tell policy was a compromise instituted after the military brass complained to Congress about Clinton's attempt to lift the restrictions on homosexuality in the military. So the military instigated its creation and oversaw its implimentation.

    And the current interpretation of the Solomon Amendment cutting off *all* funding to an entire university if the law school resists military recruiters is the result of an "informal" policy change on the part of the Department of Defense after the September 11 attacks. After that informal policy change, Congress codified the change into law in 2004. So, again, the military wanted a policy change and Congress followed.

    Make an argument if you wish about the wisdom (or lack thereof) of the military's treatment of gays and lesbians. But for Pete's sake, don't pretend that it isn't the military's policy!
    3.7.2006 3:13am
    John Lederer (mail):
    The GMU brief has two alternate arguments. The first is Spending Clause and the Court did not choose to go that way. The second does seem fairly consistent with the Court's decision.
    3.7.2006 3:21am
    Kovarsky (mail):
    KMAJ,

    I'm hesitant to clarify because I haven't read the entire decision thoroughly, BUT based on what I've read the decision actually went a little further than that. I think a lot of the buzz is about the fact that the ruling was more than just that funding can come with strings attach - the ruling indicates that Congress actually could simply legislate on the issue, without having to back-door it through the spending clause.

    I actually don't have too much problem with that ruling, for a couple of reasons. First as a purely logical matter, I think that using the spending clause to achive that which you couldn't otherwise achieve is an artifact of formalism that I'd rather see extinguished (although there are admittedly standards involving how the spending clause can be used to this effect). Secondly, I tend to disagree with the notion that membership to an organization is generally "expressive activity." Sure, there's an element of expression there. There's an element of expression in almost every action humans are capable of performing. The trick isn't to implement a formalistic, categorical distinction of what is expression and what isn't, but is instead to figure out how much expression a given piece of conduct or membership rule contains, and figure out whether it's "enough" to bring the association or allegedly expressive conduct within the ambit of the first amendment. Obviously an "i know it when i see it" kind of rule is undesirable - which is why i have some problems with the "inherently expressive" standard I've read that this opinion uses (I prefer my rules clear) - but it at least acknowledges that these things lie on a spectrum, some of which lies within the legitimate bounds of regulation.

    Of course I have to separate this issue from the fact that I find the dont ask dont tell policy to be so profoundly misguided there aren't words to describe it. But the sensibility of that policy doesn't really have to do with whether or not regulation of the menu of employers law schools allow on their campuses amounts to a restriction on expressive association. I do, however, hope that this reasoning is applied consistently, without respect to the political impulses involved, so I would also like to see Dale either overturned or severely restricted.
    3.7.2006 3:23am
    Erick:
    I'm sorry, is congress no longer the federal legislative body? I must have been confused, because I thought regardless of what the military wants, they are not the ones who have the final say on the issue. I thought there was some sort of civilian control over the military, and complaints about military policies should probably be brought against the civilian bodies having ultimate control over said military. But apparently thats some craziness I read on a blog that I don't actually read. Weird.

    There's no honest argument for banning the military and not congress (and pieces of the executive branch as well) when the policy could not have been put in place without them wanting it as well.
    3.7.2006 3:26am
    Kovarsky (mail):
    On a related note,

    I propose a temporary detente. Let's not use the words conservative or liberal in making our arguments.
    3.7.2006 3:29am
    Kovarsky (mail):
    Erick,

    Congress does not have a don't ask don't tell policy.
    3.7.2006 3:34am
    Kovarsky (mail):
    By the way, could Alito have voted if he wanted to? If he could have but declined, I think that speaks to his integrity.
    3.7.2006 3:36am
    John Lederer (mail):
    Snowball,

    Are you sure that the 1994 amendments extended the coverage of the Act's funding cutoff the university as a whole rather than just the offending department/school? I was under the impression that that was always the case, and the 1984 amendments principally went to requiring equality of access rather than just access and some changes in which federal funds were involved.
    3.7.2006 3:38am
    Erick:
    So what? They implement and support the military's DADT. It absolutely could not happen without their support. A single congressman has more control over DADT than all the JAGs recruiting at law schools. Why punish the JAGs (and the servicemen, hell and even Gitmo detainees, who will now be deprived of superior legal representation) but leave the people with more control over the policy untouched?
    3.7.2006 3:42am
    snowball (mail):
    Erick:

    Yes, you are confused.

    The military is the employer. If a servicemember is discharged under the Don't Ask Don't Tell policy, he or she would sue the Sec'y of Defense, not the House and Senate. M'kay?

    The law schools' anti-discrimination policy applies to employers who discriminate in employment. The policy doesn't apply simply because a policymaker advocates legal disabilities for gays and lesbians. If the policymaker doesn't actually discriminate in employment, then no problem.

    So, let me give you a hypothetical that should further clear up any fog in your head on the point. If Senator Jefferson Davis "Boss" Hogg (R-Georgia) took to the Senate floor every day to denounce the evil lavender menace and to sponsor legislation banning gays and lesbians from any job in the executive branch, but was willing to stock his own office full of luscious hunks of flaming man-meat as queer as a three dollar bill (as one might expect from someone so vehemently opposed to gays and lesbians), he could still recruit at AALS law schools as an employer.
    3.7.2006 3:48am
    snowball (mail):
    John Lederer:

    I should clarify. I believe that the extension of the funding cutoff to the entire university (at least, with respect to DoD funds) was enacted by legislation in 1997 and 1999 and then in regulations promulgated under that legislation in 1999. The post-Sept. 11 informal policy change and the 2004 legislative amendments tightened what qualified as equal access but didn't change the penalty, which had already been expanded by 1999. However, schools had avoided the expanded penalty by giving some access to military recruiters but not the full access received by non-discriminating employers.
    3.7.2006 3:59am
    Erick:
    And my (very simple, and I thought obvious) point is that a more honest policy would not hide behind the technicalities in the differences between the organization of the government and private employers.
    3.7.2006 4:00am
    KMAJ (mail):
    Kovarsky,

    I think one has to look at the DADT in a military perspective. When one joins the military one gives up certain freedoms that are not conducive to a military construct. The military has to deal with morale and unit cohesiveness to be an effective fighting unit, anything that might be deleterious to that has to be looked at and addressed. It is not a simple public discrimination case, but something that could have negative effects on the above as well as possible recruitment and retention negatives because of bigotry (not wanting to serve with gays). There has been no empirical study, so we have no data with which to make such a determination, but you have anecdotal evidence that it is detrimental to morale and cohesiveness due to conscious and subconscious prejudice. You simply cannot legislate away those types of feelings and you cannot afford to have a weakened military. Maybe when societal attitudes have time to change, those parameters of DADT can be changed, but during a time when we need our military to be the best they can be as a fighting force, it could be hazardous, if not deadly, to play social engineering games with the military.
    3.7.2006 4:13am
    snowball (mail):
    Erick:

    There aren't any "technicalities" in the AALS policy. It is not meant to punish the expression of anti-gay policy positions. It is meant to ensure that sexual orientation is not a barrier to legal employment. Leaving aside the silliness of your insisting that somehow DADT was foisted on the military (it wasn't), whether Congress is "at fault" for DADT doesn't matter one iota because Congress isn't the discriminating employer--DoD is.

    Oddly, the simplicity of the AALS policy and its limited reach to the employer/employee relationship exposed a serious problem with the law schools' position before the Supreme Court. The limited nature of the AALS policy obviously contributed to the Court's view of what was occuring on campus as a mere employment market and not any great expressive enterprise.

    If the AALS had expanded its anti-discrimination policy to target potential employers who express anti-gay positions even when those employers don't discriminate against gays in employment (Boss Hogg in my earlier hypothetical) then maybe the law schools would have had a stronger 1st Amendment claim.
    3.7.2006 4:19am
    snowball (mail):
    KMAJ:

    These all may be valid points, but they would apply with equal vigor if the military had decided to discriminate against blacks, hispanics, jews, or Catholics. All of those groups have suffered historical societal discrimination such that at one time or another recruiting or retention might have suffered because of bigotry against them. I believe George Washington prohibited religious discrimination in the Continental Army, but at least with respect to race, the military did discriminate until the Truman Administration.

    It's a good thing that Truman desegregated the military before Brown v. Board, because I shudder to think what the Supreme Court would have done if there had been a challenge to segregation in the military in the 1950s. All of the arguments you suggest about morale and cohesion probably would have carried the day.

    Somehow, though, the military seems to have gotten rid of segretation well before the rest of American society did. Why not sexual orientation discrimination?

    As for empirical studies, I have two quick thoughts. First, the Israeli and British militaries don't discriminate on the basis of sexual orientation, and I'm not aware of any evidence that they have been degraded as fighting forces.

    Second, the DADT policy applies throughout the military--not just to crowded barracks or tents on the front line. It applies to the officers' club. It also applies to intelligence operations at command headquarters or in the Pentagon itself. All of the concerns about "close quarters" and the like don't make any sense in those settings.

    Maybe an enlisted man won't take an order from an openly gay officer today. But is that more likely to be true than the possibility 40 years ago that a white enlisted man from the south wouldn't take orders from a black officer? Does any of that matter when the affected servicemember under the DADT policy is a code breaker or translator working at a desk in Washington?
    3.7.2006 4:39am
    Kovarsky (mail):
    Erick:

    The "technicalities?" Yes, Congress should subrogate the military whose policy it authorized and be held accountable for its hiring practices. Much like Congress should be treated as having, uh, agency in all endeavors it condones.

    In light of your progressive - maybe even radical - view of state action, I trust that you think the government should not be allowed to enforce private arrangements that would be unconstitutional if the government were a nominal participant.
    3.7.2006 4:40am
    Kovarsky (mail):
    KMAJ,

    I'm glad Snowball is engaging you in this argument, but I am not going to get caught up in a general gays-in-the-military discussion on this thread. I will say one thing - you said there are no studies on the matter, but I seem to remember you commenting on Dale Carpenter's post of one such study about 2 weeks ago. Maybe you weren't commenting, but the study was certainly posted.
    3.7.2006 4:44am
    KMAJ (mail):
    Kovarsky,

    It might be my faulty memory, but I do not remember commenting on or seeing any study of gays in the military.
    3.7.2006 5:06am
    KMAJ (mail):
    Snoball,

    Personally, I disagree with the argument that racism and anti-semitism are analogous to sexual orientation. So when you make that argument you are not dealing from identical positions. I am not going to enter into the debate of whether or not sexual orientation is genetic. Science has not proven that it is or that it isn't.

    When you cite Great Britain and Israel, we are not either of those two countries, and while allies, there are still cultural and societal differences. Because they appear to be more tolerant does not mitigate the repercussions of a similar policy here. It is the same as saying because another country that supports/allows gay marriage, the US must do the same. That is a flawed argument because the public/electorate does not have to do so. The US has its own distinct and separate cultural and societal mores and folkways and does not need to become Europe Jr.

    Now, while your close quarters argument has some validity within some of your parameters, it would create a disparity to having uniform rules and regulations that span the full military spectrum. In essence, to do that is to put the foot in the door and create a legal nightmare. I could see the lawsuits flying if they allow it in one area of the military and not another. So while your argument has som validity, it is not without repercussions and consequences. During a time of war, that would simply be an unacceptable and very unwise distraction.
    3.7.2006 5:31am
    Cornellian (mail):
    This is really a stinging rebuke, not only to FAIR but to an entire industry that has become complacent and self-indulgent. Many law professors really do believe, with the late Justice Brennan, that their own strongly-held policy preferences are all encoded somehow in the Constitution. This is a timely reminder that it just isn't so.

    True enough, but believing one's policy preferences are "somehow encoded in the Constitution" is not something restricted to law professors, or to liberals. Quite a few judges feel that way, some of them conservative (or at least labeled as such).
    3.7.2006 6:42am
    Guest44 (mail):
    DADT is Congress's policy--it's U.S.C.--and I was thrilled to see Roberts discuss it as such throughout the opinion.


    Even if senior members of the military shared responsibility with Clinton and Congress creating the policy 16 years ago, no uniformed member bears any responsibility for it today. They're just bound to enforce it.


    It's my belief that people who insist on calling it "the military's" policy expose their own bias. Even if DADT were repealed tomorrow, they would still oppose military presence on campus.
    3.7.2006 6:50am
    A.W. (mail):
    As an alum of Yale Law, I am frankly infuriated at the behavior of my alma mater these days. By what logic is the ROTC and military recruiters excluded, but the Geobbels of the Taliban included? It frankly borders on treason in my mind.

    And this suit was a classic example of not only legal wishful thinking (rebuked unanimously, as noted), but also short-cited liberalism. Liberals these days have a penchant for seeking short-term gains that destroy their long-term goals. For instance, if you really, really care about gay rights, then maybe you need to get butch about fighting al Qaeda. But instead the gay rights lobby pretend that their greatest danger is George W. Bush, because he won't let gays marry, as opposed to Osama who will have them stoned to death. Likewise, liberal newspapers like whistleblowers, but bristled when someone blew the whistle on Joe Wilson and demanded prosecutions. Now the Bush administration is demanding the same thing, only in cases that the left would call "good leaks." Or my recent pet peeve, the liberal idoicy pretending that faith has no role in forming policy; if we had to repeal every law motivated in large part by faith, that would sweep away everything from the Declaration of Independance, to the Thirteenth Amendment, to the Civil Rights Act of 1964. It is incomprehensible that a party that honors the REVEREND Martin Luther King (and rightly so), and counts the REVEREND Jessie Jackson and REVEREND Al Sharpton among its leaders, would go apesh-t every time Bush mentions God in a sentence.

    In this particular case, the short sightedness of the left was in the appalling precedent they were attempting to set. If they had a right to exclude the military while recieving congressional money, by what logic could the federal Government then enforce Title IX, or the Federal Rehabilitation Act? [For those who don't know, the FRA is basically the same as the Americans with Disabilities Act, only it applies to all organizations that recieve federal money). So, in the name of protesting what they consider the lack of civil rights for gays, they were trying to set back for decades the cause of civil rights for everyone (including, incidentally, gays). Considering that these are all private schools that have had a less than exemplary record on diversity, i have to wonder if there were elements in the school that were hoping for exactly that result and played the liberals for fools.

    And how incompetant could this effort be, if the Supreme Court rejected it 8-0? Consider this. The supposedly greatest legal minds in this nation, got it wrong, 8-0. They were not even close. What am I supposed to think of a school that got things so wrong?
    3.7.2006 7:14am
    anon) (mail):
    There have been many comments that commented on my intelligence or class. All of them have been insulting, and none of them have addressed the issues of my post or even Fair v. Rumsfeld. Instead, people either flag-waved, or insulted me. None of which helped America or this discussion. Indeed, all of Kovarsky's post was nothing more than an anti-me rant. He also refers to an "IQ register" but doesn't define what such a thing is. Is this a standardized test or just some way that people declare themselves to be smart? Since I think sports are a waste of time, I think it is irrelevant whether Mr. Puckett died.

    Dustin, there are no personal issues here. While I consider GMU grads human, they are just not the kind of people I would want in my family because of their low LSAT scores. Nothing personal. Get used to rejection. It isn't always personal. But, I guess you figure that everything that seems "personal" is "liberal" as you lay people call it. Cute.

    Kovarsky, I don't have a political viewpoint, so nobody really "aligns" with me. I don't care who the president is, and, quite frankly, I don't care who won in Fair v. Rumsfeld. The result of your post is nothing but insults, so I can't admit or deny them. But, I admire you for your later post, which suggests that people stop using "liberal" or conservative." This was a bold step into the future.

    AW, I hope you served (hopefully not as an officer) and don't just wave flags around all day, hoping the people will agree with you politically. It hurts America for a lawyer to call things "left" and "right" wing. Also, you have not explained how the military was actually hurt by Yale's action. Were they unable to recruit. Do they really use on-campus interviews? Is JAG now flooded with TTT-graduates, because Yalies had no idea that they could work for JAG? Also, if you were a real American you would read every Supreme Court case. Seriously. You would know that 8-0 rulings this term are quite frequent. Almost the norm. Even on controversial issues. Has nothing to do with "incompetence" but rather the internal "politics" of the court. Anyway, be an American.
    3.7.2006 7:59am
    sbw (mail) (www):
    JLR, I thought your comment on liberal authoritarianism should have been considered a friendly reminder to today's liberals to reexamine the history of liberalism, the better to establish sound footing for political positions. Classical liberalism is quite different than what liberals pursue today. Instead, commenters chose to hammer JLR instead of learn.

    Secondly, I'm not a lawyer, but I had the impression that an amicus brief should not repeat the points in law that had already been made. Accordingly, to diminish the GMU brief for not emphasizing the main argument others had already made seems to show a misunderstanding of procedure. Am I correct?
    3.7.2006 8:08am
    Guest44 (mail):
    anon) is flame and should be banned and have his posts deleted before he baits any more posters.
    HTH
    3.7.2006 8:10am
    Bezuhov (mail):
    "So where's the venom coming from?"

    My theory is that for the left to admit the power that has come with age is to admit they have aged. Didn't quite manage to die before they got old. Tough to admit to themselves, I guess, easier to pretend George Mason, the lone dissenter in this case, is the voice of power instead.
    3.7.2006 8:20am
    Bruce Hayden (mail) (www):
    I think that there is still a lot of room left between Dale and FAIR. In the later, the association claim was really weak, since it was really the students who would have to associate with JAG, and yet it was the profs who were suing. And there is a big difference between being in the same large organization, presumably a couple of buildings away, that allowed JAG recruiters in the door, and in the same tent. Yes, it was the parents in Dale complaining, but I would think that as legal guardians of minor children, they would have a much stronger voice than the law profs do for protecting their students (almost all of whom are legal adults). And, of course, it didn't help their case, that they were refusing to associate with the military on the grounds that the military was obeying dutifully enacted statutes.
    3.7.2006 8:22am
    Moneyrunner43 (www):

    While I consider GMU grads human, they are just not the kind of people I would want in my family because of their low LSAT scores. Nothing personal.

    I have not seen anything this bizarre since "Guess Who's Coming to Dinner?" This must be a parody.
    3.7.2006 8:32am
    Chuck Pelto (mail) (www):
    TO: Todd Zywicki
    RE: Brennan, He Says?

    "Many law professors really do believe, with the late Justice Brennan, that their own strongly-held policy preferences are all encoded somehow in the Constitution." -- Dean Dan Polsby of George Mason Law School

    Brennan, as I recall, wrote that egregious piece of work known as Baker v. Carr ('62), a.k.a. the One-Man/One-Vote ruling; which overthrew the constitution of every state in the Union, less Nebraska. In so doing it destroyed the balance of power between the metropolitan and rural areas in the state legislatures.

    He was, in my opinion, the most damaging of the activist-judges in our history, to date.

    Regards,

    Chuck(le)
    3.7.2006 8:47am
    Steve:
    I was afraid to click on this post when I saw it had 80 comments but it was actually pretty amusing. Aside from the people trying to be intentionally funny, who succeeded in their goal, there are a few categories of people who are getting things a little wrong:

    1. Some people characterize this as a humiliating smackdown for the law schools, perhaps imagining Chief Justice Roberts as their white knight gloriously smiting the forces of political correctness. In truth, this entire episode was a protest action; the law schools surely knew they would lose the case, and I doubt they expected to win in the Third Circuit.

    As someone who happens to believe that DA/DT is terrible law, I appreciate the protest. I think it's appropriate for those who object to discrimination to make a statement rather than silently accede, and in this case the protest succeeded in making the issue more visible and reminding the public that, even in this time of war, keeping gays out of the barracks still takes priority over national security. (No offense to anyone who chooses to believe that discharging gay Arabic translators from the armed forces actually helps the war effort, mind you.)

    2. When you protest, there will always be people telling you how you ought to be protesting. Strangely, these are most often people who don't agree with the protest in the first place! In this case, some people argue that if the law schools truly had any principles, they'd sacrifice all that federal funding (on behalf of the entire institution, mind you, not just the law school) in order to continue the protest. Others, somewhat desperate to show off how smart they are because they know DA/DT is a Congressional statute, demand that the protest be directed against Congress rather than the military. If you don't do all of these things, the folks who don't agree with the protest at all declare, then you're just a hypocrite! Yes, yes, and that environmental protester over there would shoot herself if she truly believed in protecting the environment, rather than pollute the atmosphere with all that carbon dioxide she churns out. It's fun to call people hypocrites!

    3. Still others, putting forth the popular notion that law schools are nothing more than repositories of doctrinaire Stalinist thought, suggest that the law schools are just using DA/DT as an excuse to discriminate against the military, because they're sooooooo anti-military by nature, and that if DA/DT were ended tomorrow the law schools would just find another excuse to keep the military out. (Was Stalin really that anti-military, I wonder?)

    My sense is that, unless DA/DT were repealed and replaced with an admonition to the military to refrain from discriminating altogether on the grounds of sexual orientation, the default in the absence of DA/DT is that the military would revert to its historical process of declining to admit gays. The fact that the military brass opposed Clinton's original attempt to eliminate sexual orientation discrimination altogether, forcing him to accept the current awkward compromise, seems to bolster my conclusion. So yeah, if DA/DT were repealed, the military would likely become more discriminatory rather than less, and it would hardly be surprising that protestors continue to protest!

    Finally, as for GMU Law, they have carved out a very nice conservative niche for themselves, kind of like these folks, and they make no bones about it. People should be nicer to them. I think they have an outstanding institution and I would be thrilled to send my kids there someday, if not for the tragic result of them ending up as lawyers.
    3.7.2006 9:01am
    Blue (mail):

    In truth, this entire episode was a protest action; the law schools surely knew they would lose the case, and I doubt they expected to win in the Third Circuit.


    Maybe if these "elite" law schools focused on the law as it is rather than the law as they would like it to be, they would do a better job of turning out lawyers rather than frustrated policy wonks, hm?
    3.7.2006 9:11am
    USAF JAG:
    2 things:

    I love hearing people who wouldn't dream of serving in the military, and in fact go around campus with the LaRouche crowd calling them babykillers, complain about military policies designed to maintain esprit de corps and morale.

    Secondly, how is enlisting more patriotic than serving as a JAG? I deployed, and was in Operation IRAQI FREEDOM at the front lines...because I went to law school and now serve that is less patriotic?

    If law schools want true diversity, they'd admit more conservative law students and employ less liberal sycophants...I mean profs.

    Here's to GMU.
    3.7.2006 9:14am
    Guest44 (mail):
    I appreciate your thoughts, Steve, but I think you're wrong on the statutory avenue and the protest avenue. I think your C02 analogy is really weak too.

    DADT is a law. (And I agree that it's a bad one.) If you want to get rid of it, you need to convince Congress. Picketing or yelling at anybody in uniform will do exactly zero to change the policy. The argument is not that they're being hyporcitical; it's that they're improperly trying to influence the agent rather than the principal.

    CJ Roberts got it right. He always called it Congress's policy or the Government's policy.
    3.7.2006 9:15am
    Cornellian (mail):
    Maybe if these "elite" law schools focused on the law as it is rather than the law as they would like it to be, they would do a better job of turning out lawyers rather than frustrated policy wonks, hm?

    A lawyer who can't see beyond the state of the law today is a lousy lawyer, or at least a lousy choice to retain as an appellate lawyer.
    3.7.2006 9:19am
    Justin (mail):
    AW: When Joe Wilson (did you mean Valerie Plame?) breaks a law and Al Queda has legal jurisdiction over the United States, you might, MIGHT, have a point.

    Till then, congrads for getting into Yale Law (I guess). If you're so ashamed you can do them a favor and stop telling people you went there.
    3.7.2006 9:19am
    Barry (mail):
    I'm still chuckling at the post that asked about the likelihood that the military discharged a doctor for being gay, suggesting that this is more likely than the military not ever recruiting a doctor because he/she has no real exposure to the military as a career option. This generally happens when one is PRE-med. Doctors in med school are usually pretty busy...

    How many doctors have been discharged for being gay? Any numbers?

    I've only met one gay former military doctor, and he is quite obviously flaming gay -- he's not the sort who would take offense at this statement, either. He was not discharged, threatened with discharge, or anything else.

    My understanding is that such a discharge is VERY rare, and that it's unlikely it has happened once in the past year.

    That said, I question the military's policy. On the other hand, I don't really consider the privelege of getting shot overseas to be a "right", like freedom of religion, for example. It's pretty difficult for me to get too excited about "don't ask, don't tell."

    What I question, really, is why the military keeps this option open for those who want to get out of the military early. I also met someone who successfully played the "I'm gay" card to get out of the Army.
    3.7.2006 9:22am
    Steve:
    But the law schools aren't yelling at anybody in uniform. Indeed, yelling at people in uniform was one of the alternative methods of protest CJ Roberts himself proposed, now that barring recruiters from campus is no longer an option.

    I accept that, these days, the accepted means of "convincing Congress" is to give millions of dollars to some Jack Abramoff type, and maybe the law schools should have considered it. But there are other ways of getting laws changed, and one of them is to appeal to public opinion. By engaging in a visible protest, by attempting to plant the seed in students' heads that they shouldn't stand by and ignore this sort of discrimination, they keep the issue visible in hopes that public attitudes will change.

    There's nothing improper, by the way, about attempting to influence an agent rather than the principal. It might not always be the most effective way, but there's nothing inherently wrong with it. Since it was the military's hostility towards non-discrimination that led to the enactment of the DA/DT statute in the first place, one might reasonably surmise that if the military's hostility were lessened, it would be easier to get the statute changed. Imagine if the military told Congress, "It's a real pain recruiting when we're constantly shut out of places due to DA/DT, why don't you just get rid of the law." Or if the makeup of Congress changed such that they wanted to get rid of DA/DT, and the military didn't object this time. Now, I'm not sure either of these scenarios are likely to occur, but my point is that they're rational outcomes to pursue.
    3.7.2006 9:26am
    Steve:
    And of course the CO2 analogy was weak. I have to save my good analogies for appellate briefs. The point remains that you can play this game all day of saying "if you REALLY believed in this principle, you'd do X," where X is an absurd or suicidal act. It's nothing more than a debating point.
    3.7.2006 9:29am
    Ric Locke (mail):
    Liberals these days have a penchant for seeking short-term gains that destroy their long-term goals.


    Spot on. In fact, that is what generates red-curtain-of-blood rages among some of us, and this is a perfect example. I'm not a lawyer; I can't really comment on details of the decision, though on balance I'm happy with it. But on the basis --

    Several people have pointed to Truman's integration of the military as an example of what they'd like to see enacted in the case of gays. What they miss is that Truman did not act in a vacuum or de novo in that case. I am a white Southerner. I had many, many relatives and neighbors who had served in WWII and were able to accept Truman's act, though often grudgingly, because of their memories of good military behavior and acts of heroism on the part of segregated units (black and others) in the war. If there had been no Tuskeegee Airmen, no Nisei Battalion, and above all no Red Ball Express, there would have been no Truman Declaration, and in my opinion there would never have been a Civil Rights Act at all.

    There has been no analogous set of events regarding gays. No, the Sacred Band doesn't count -- in fact, having to reach back several millenia for a successful example, with none in the intervening period, refutes the argument rather than making it. The function of Don't Ask, Don't Tell from the point of view of the military is gradualism, a desire to build a corpus of experience to point to, so that when bigots object successful examples can be presented. It's the only way it might ever actually work.

    Prejudice and bigotry exists. It needs to be done away with. But waving a fairy wand and expecting the thing to be done in an instant is a case of Utopianism certain to make things worse, not better. If the Truman Declaration had been made in 1939, the UCMC would today contain a formal method for lynching.

    Pointing to other countries' militaries as an example is wrongheaded for two reasons. First, they are not, despite generous and often admiring statements from military people themselves, as effective as American units. Study the NTC records. Regular, active duty, constantly trained foreign units are regularly humiliated there by American reservists. The U.S. military is unique. Second, the organization of the American military is quite different from that of most others. In particular, we do not have units anchored to a geographic area; a Southerner finds himself ordered about by a New Yorker, or vice versa, as a normal thing. American military units do not represent a community outside the military, and in any case the United States is much less homogeneous than almost any country outside Russia.

    Any policy selected for the military must account for a group of people selected by throwing darts, blindfolded, at a map and grabbing the nearest person to the hole. In a group selected by that method there will inevitably be people who are bigoted, and the necessary mechanism for coping with them would amount to reorganizing the military for no other purpose -- and would inevitably result in numerous cases where a member who was bigoted against gays but had served with distinction otherwise was punished. That ultimately yields an organization whose purpose is to privilege homosexuals, with any "military" functions secondary if they exist at all. People who consider the military functions paramount look upon that with something of a jaundiced eye.

    So the entire FAIR tactic is specifically designed and implemented in such a way as to frustrate its stated intentions. Seeing it brought down, even in part, is immensely satisfying to those of us who wish to see justice prevail, rather than greedily grabbing a political issue as a means of advancing an ideological agenda that sneers at actual justice while advancing a Utopian scheme that can only fail when tested under real-world conditions.

    Regards,
    Ric
    3.7.2006 9:33am
    Steve:
    The function of Don't Ask, Don't Tell from the point of view of the military is gradualism, a desire to build a corpus of experience to point to, so that when bigots object successful examples can be presented.

    Is it your contention that the military is actually in favor of integration, but they feel they need to sell the public on it? Others have contended that the military is opposed to DA/DT because they view it as an inescapably dishonest policy.
    3.7.2006 9:39am
    Guest44 (mail):
    Steve: There are multiple stories you could tell about why law schools refer to DADT as "the military's policy" or seek to block JAG recruiters but not info sessions for Congressional summer jobs.

    One story is the one you've told: they think that they'll get more press, and they think they'll get the JAG officers to talk to Congress and say "it's really hard to recruit what with DADT."

    Another story is mine: law school students interested in the military (and people sympathetic to the military in general) are a minority group in law schools. It's very easy for the majority groups (an alliance between pro-gay-rights groups and anti-military groups) to ignore their interests. Actually sending a message to Congress (instead of to JAG, hoping they'll pass the word on to Congress) would hurt a lot more than pretending that the policy is something the military could change if it wanted. It would actually be painful to students, profs. and Deans if Congressional recruiting were blocked on campus. My story goes on to say: they don't care about DADT enough to bring on that level of pain. So they take the easy way out and just try to block one JAG captain from talking to about 20 students over a three week period once a year.
    3.7.2006 9:45am
    Chuck Pelto (mail) (www):
    TO: Ric Locke
    RE: The Function

    "The function of Don't Ask, Don't Tell from the point of view of the military is gradualism, a desire to build a corpus of experience to point to, so that when bigots object successful examples can be presented. It's the only way it might ever actually work." -- Ric Locke

    That might be the case. However, it doesn't seem to be working that well.

    Case in point, the recent story of the gay paratroopers of the 82d.

    They were yanked OUT of their units the moment the story hit the street. Why? Probably for their own protection more than anything else.

    How long has "Don't Ask/Don't Tell" been in force? Something like a decade?

    Based on this, not to mention Brokeback Mountain not getting Best Pic, I get the distinct impression that the homosexual movement is not making the sort of headway in reality as it is in academia and the so-called major media.

    Steve (above me and below you) pretty much nails it that way too.

    It's not working. The 'why' would be a very interesting study for some aspiring psychology doctorate.

    RE: Back On Topic

    The law school professors who want to twist the Constitution to suit their own particular dialect of politcial correctness were handed a drubbing. There is no question about it.

    All that is left is their shouting....which they are doing.

    Regards,

    Chuck(le)
    3.7.2006 9:50am
    TO:
    "The court adopted our argument" is a common sales line, sort of like "our car was judged best in its class." Lawprofs use that all of the time when a law review article they wrote resembles the disposition of a case.
    3.7.2006 10:15am
    jsallison (mail):
    Now, which school will be the first to turn back federal funds as they speak 'truth' to power? Hmm? Beuller? [cricketchirp]
    3.7.2006 10:18am
    Chuck Pelto (mail) (www):
    TO: jsallison
    RE: An Excellent Question

    "Now, which school will be the first to turn back federal funds as they speak 'truth' to power?" -- jsallison

    I doubt if any of them have what it takes to do that. I think they lack the personal intestinal fortitude. Sort of like expecting most people to give up their Windows-based platforms because they are offended at the way Microsoft is in bed with the Chicoms; oppressing the billion+ citizens of that country.

    Anyone care to start a pool?

    I've dibbs on "None".

    Regards,

    Chuck(le)
    3.7.2006 10:21am
    guest123 (mail):

    Maybe if these "elite" law schools focused on the law as it is rather than the law as they would like it to be, they would do a better job of turning out lawyers rather than frustrated policy wonks, hm?


    Considering how well these "elite" law schools place their students at "elite" law firms, I have the feeling they're turing out lawyers just fine.
    3.7.2006 10:41am
    Steve:
    What would be the real-world consequences of a law school continuing to violate the Solomon Amendment? Well, since the consequence would be that the entire institution would lose its federal funding, one might reasonably expect the Dean to be fired either by the president of the university or the Board of Trustees, and a new dean hired who will comply with the law.

    Perhaps some independent law school will adopt the Hillsdale model and reject federal funding, although I don't know that any of the "elite" law schools whose defeat we are celebrating fit into that category.

    Anyway, as I said above, I think it's quite silly to argue that anyone who believes in a principle must be willing to lose their job/livelihood/etc over it, and I note that 95% of such arguments are made by people who disagree with the principle at stake in the first instance. But hey, it's a free country, and obviously people intend to go right on making that argument. I am quite confident that each and every one of these commentors, however, adheres to certain "principles" in which they believe quite strongly, but nonetheless would decline to sacrifice their career or way of life for them. Only in fantasyland must one be unfailingly absolutist about every principle.
    3.7.2006 10:42am
    Smithy (mail) (www):
    If these schools don't want us to recruit there, then maybe we shouldn't bother protecting them from terrorist attacks. It would be a cruel irony to see a professors who have spent so much time whining about wiretapping, extreme rendition, and the like see the consequences of coddling terrorists first-hand. Maybe then they'd learn that civil liberties don't mean much in the face of a suitcase nuke.
    3.7.2006 10:44am
    Hoosier:
    Sorry for interrupting. But what is a "TTT"?

    I've never heard the phrase. But you all seem familiar with it.
    3.7.2006 10:58am
    Guest44 (mail):
    Yeah, Law School Deans can't do much on the funding issue. HLS gets almost no money from the feds, but HMS gets like 25% of its budget from them. HLS's dean doesn't have the freedom to do that to the medical school even if she wanted to.


    Steve, I think you're missing a distinction here. Protesters are willing to interfere with students' ability to talk to JAG recruiters, but not students' ability to talk to Congressional recruiters. This isn't about being willing to make a small sacrifice versus a big sacrifice. This is about forcing someone else to make a sacrifice that you are not willing to make for yourself.
    3.7.2006 10:58am
    JimF:
    Hey, wait a minute. Georgetown is a Catholic institution, and the Catholic faith holds homosexuality to be a disorder and homosexual acts as sinful. How can Georgetown maintain that discrimination as wrong, when the Roman Catholic Church holds the same discrimination as necessary?
    3.7.2006 11:03am
    Steve:
    What sacrifice would administrators be making for themselves, regardless of what they banned? They're not the ones looking to get hired. It sounds like you're saying "rather than engage in a symbolic protest that imposes little harm on your students' career choices, if you had real principles you'd engage in a symbolic protest that imposes great harm on your students' career choices." Well, maybe, but given that it's all symbolic anyway, maybe it's not necessary to screw over students in the process.

    I seriously do not see the logic that because Congress permits discrimination in a single, discrete arm of the federal government, a protest must extend to all of Congress rather than focusing on a single, discrete arm. Keep in mind that the purpose of the protest is not simply to persuade Congress, a body that responds only to monetary inducement, but to educate students and the public. A protest aimed at all of Congress doesn't really convey to the public what it is you're protesting, at least not as effectively as a protest aimed specifically at military recruiting.
    3.7.2006 11:05am
    Hoosier:
    G'town isn't Catholic. It's Jesuit. Since Vat II, there's been a difference.
    3.7.2006 11:05am
    dk35 (mail):
    Guest 44,

    As you'll see, I disagree with your take on the issue, and hope you don't mind if I address it point by point.


    law school students interested in the military (and people sympathetic to the military in general) are a minority group in law schools.


    While law school students interested in working for the miliary are a minority group in law schools, the notion that a majority of law school students are unsympathetic to the military in general is nothing more than a right-wing talking point. It is in no way reflective of today's reality. Do you actually know any law students? When our gay law student group led a protest the military's presence in the school last month, the overwhelming majority of the student body expressed their support for protesting the military's discriminatory hiring policy, while also bending over backwards to say that they did not oppose the military in general. Basically, law students are not so different from the majority of young people today. In other words, they are pretty establishment in their thinking, and also happen to believe that being gay is no big deal and that gay people should be treated the same as everyone else. And we (the gay law student group) agreed with them.


    It's very easy for the majority groups (an alliance between pro-gay-rights groups and anti-military groups) to ignore their interests.


    When our pro-gay-rights group decided to protest the military's discriminatory hiring policy, we did not seek out any alliances with anti-military groups. Primarily, we didn't seek out such alliances because we were not anti-military. And, even if we were anti-military, we would not have had any luck striking up any alliances, as there exactly zero (0) anti-military groups at our law school.


    Actually sending a message to Congress (instead of to JAG, hoping they'll pass the word on to Congress) would hurt a lot more than pretending that the policy is something the military could change if it wanted.


    Firstly, who says we don't send messages to Congress? We sign petitions, we promote discussions of gay-rights issues, we inform about candidates' positions on a whole host of issues related to gay rights (including the military issue), we invite politicians to speak on campus. And, with regard to the military changing the policy if it wanted to, are you really telling me that you think that if the Joint Chiefs went to Bush and Congressional leaders tomorrow (in public) and said "We want you to lift the ban on openly gay Americans in the military," that the administration and Congress wouldn't go along with it? Do you really, really think that?


    It would actually be painful to students, profs. and Deans if Congressional recruiting were blocked on campus.


    I'm not sure what law school(s) you are talking about, but I don't think we had any "Congressional recruiting" going on at our law school. With the exception of JAG and a few other random agencies, the Federal government does very little on campus recruiting. If you want to work for the Federal government right out of law school, you generally have to send applications to them. There is a government honors program by which law students can apply to certain executive agencies, but that application process does not have an on-campus component. If by "Congressional recruiting" you mean working on the staff of individual congressmen, or working on the staff of congressional committees, I always assumed those spots were reserved for children of the Congressmen's college roommates, or perhaps a couple of Harvard and Yale law grads (especially children of said old college roommates of various Congressmen).
    3.7.2006 11:08am
    Guest44 (mail):
    Steve, if a conservative Congress were responsible for discriminatory hiring practice in the EPA, that the EPA had to comply with, who would law schools protest? Congress, of course. They'd never even think of denying EPA recruiters access to campus.

    They're only protesting the military because the majoritarian groups in law schools are generally anti-military (or at least mistrustful of the military).
    3.7.2006 11:11am
    Justin (mail):
    Back onto topic, am I the only one who "doesn't get" why George Mason would file an amicus curiae asking the Supreme Court to take away their rights? Granted, it is a conservative law school, but doesn't it have a pecuniary interest in the opposite outcome? Even if it doesn't plan on excluding the government now, for this, wouldn't it want the right to exclude X against a Congressional mandate generally?
    3.7.2006 11:14am
    Steve:
    Obviously we disagree. I absolutely believe the law schools would deny recruiting access to the EPA in your scenario (as if the EPA recruits on campus), and not to every entity associated with Congress. I guess I'm unlikely to change your mind, though.
    3.7.2006 11:17am
    Guest44 (mail):
    dk35 - I am a law student. Anti-military sentiment is not a myth, although it certainly isn't uniform. And most people attribute the policy to the military, not Congress.

    The heart of my argument is not that this whole thing is fueled by a dislike of the military. It's that an instinctive mistrust of the military makes the anti-DADT groups focus the wrong place. Only Congress can change the policy (or, at least, they're the first step).

    You're right that there's no Congressional recruiting on campus. But there is no sign that student groups or faculty want to make anyone other than uniform-wearing members of the military accountable for DADT.

    Protestors sign up for JAG interviews just to block the slot from other students. They picket and yell at the JAG officers on campus. Where's the corresponding action against people who are associated with Congress?
    3.7.2006 11:20am
    Cornellian (mail):
    The top law schools have already figured out a way around the Solomon ruling - just charge such insanely high tuition that graduates can't possibly afford to work for JAG pay after graduation.

    This is mostly a joke of course, but not entirely. The top law schools all have programs designed to help pay off the debt of those who choose public interest work after graduation. What if such programs were available to all forms of non-private law firm employment other than the military? Wouldn't seem to be a problem from the Solomon point of view since the military would still get equal access at recruitment time, but it would put a lot of financial pressure on graduates to avoid the JAG's.
    3.7.2006 11:23am
    Guest44 (mail):
    Steve - I can't believe you really think that the EPA would get even a fraction of the venom that "the military" gets today if the EPA had to enforce some discriminatory hiring policy.

    We'd get emails like "conservative Republicans in the House have forced the EPA to do X, so we're doing Y" rather than, "I hope that many members of the community will accept the Court's invitation to express their views clearly and forcefully regarding the military's discriminatory employment policy."
    3.7.2006 11:23am
    Hoosier:
    Signing up for an interview slot to prevent an actual applicant from getting the interview? I can't think of a much less collegial thing to do to a fellow student.

    This skirts rather close to the line that was crossed by campus protesters in the '60s-'70s: Your liberty to express your opinion doesn't extend to taking that right away from others. Sad.
    3.7.2006 11:27am
    Steve:
    Steve - I can't believe you really think that the EPA would get even a fraction of the venom that "the military" gets today if the EPA had to enforce some discriminatory hiring policy.

    No, I don't think that. I also never said it. If the law firm of Smith &Jones discriminated against gays in hiring, I don't think they would get the same response the military gets on campus - they simply wouldn't be allowed to recruit, and that would be that. I don't see where "venom" has anything to do with it; I said the law schools would respond to your scenario by preventing the EPA from recruiting, and you disagreed.
    3.7.2006 11:28am
    Guest44 (mail):
    We'll have to agree to disagree, then. :)

    I really think that a discriminatory policy forced on the EPA would be attributed to Congress, while DADT is attributed to the military. And these attributions have a lot to do with political orientation and sentiment about the relative worth of the military versus protection of the environment. And as a result, the corresponding protest would be targeted in the first case against Congress and in the second case against the military.
    3.7.2006 11:31am
    an (mail):
    I am most amused by all those dumping on GMU. Apparently, Breyer and Ruth Bader Ginsberg are now part of the VRWC. Which law schools are out of the mainstream now?
    3.7.2006 11:44am
    Houston Lawyer:
    I would like to know whether there are any limits on the conditions that state supported schools can impose on employers who recruit at such schools. Right now, almost every law school requires employers to agree that they won't discriminate based upon the sexual orientation of the student interviewed. However, employers would be free in most jursidictions to so discriminate. Law schools seem quite readily disposed to enforce their views on others. Sauce for the goose.
    3.7.2006 11:45am
    JLR (mail):
    Thank you SBW for your comment of support -- from 3.7.06 8:08 am -- link here. It is unfortunate that Mr. Kovarsky missed my praise of Justice Breyer in the comment that he found "annoying." I surmised that Mr. Kovarsky misunderstood the original comment and thus I reasserted my citation and praise of Justice Breyer. Justice Breyer during oral argument asserted his agreement with the Millian ideal of countering speech with speech (as Justice Breyer writes about in Active Liberty).

    In my original comment of 3.6.06 9:36 pm -- link to my comment here -- I wrote:
    The most compelling rebuttal to FAIR's position made during oral arguments was, in my opinion, made by Justice Breyer, who pointed out that the remedy for speech one didn't like (that didn't fit into categories like incitement) wasn't less speech, but more speech.
    It is a shame that Mr. Kovarsky did not read my post more carefully before choosing to deem it annoying.

    SBW, I agree with you 100%. Namely, to use your words, my comment was intended as, and should have been understood as, "a friendly reminder to today's liberals to reexamine the history of liberalism, the better to establish sound footing for political positions. Classical liberalism is quite different than what liberals pursue today."

    It is my view that Justice Breyer adheres to the true liberalism of JS Mill. As such, Justice Breyer deserves our commendation and respect.

    On the other hand, those who adhere to what I like to call "left-wing authoritarianism" should not get to hide under the great Millian label of "liberal." They should be called what they are: left-wing authoritarians.

    And yes, this is about understanding the evolution of the term "liberal." Not all "liberals" are truly liberal.

    And in order to understand American political development, it is crucial that all Americans understand the evolution of the term "liberal."

    Once again, thank you SBW for your comment of support.
    3.7.2006 11:47am
    Steve:
    I would like to know whether there are any limits on the conditions that state supported schools can impose on employers who recruit at such schools. Right now, almost every law school requires employers to agree that they won't discriminate based upon the sexual orientation of the student interviewed. However, employers would be free in most jursidictions to so discriminate.

    My sense is that a state school would be perfectly free to impose such a condition, because the employer is not exercising a fundamental right or engaging in "inherently expressive conduct" by discriminating. See Rumsfeld v. FAIR, No. 04-1152, __ U.S. __ (2006).
    3.7.2006 11:53am
    dk35 (mail):
    Guest 44,

    I appreciate your response.

    My problem with your position is that, if carried to its logical conclusion, it would mean that the President and Congress should pay attention only to its constituents, and ignore the opinion of the military leadership, in making military policy.

    Personally, I don't think that would be the best way to run a military. I think that Congress should, whenever possible, defer to the opinions of military experts. Therefore, it seems precisely right, contrary to your opinion, for the first step to be to challenge the current opinions of the military leadership on this issue if those were the opinions that Congress relied on to create policy on gays in the military. I am assuming that DADT went through becuase that was the most that military leaders at that time were willing to accept and endorse. Trying to convince military leaders to change their mind is not anti-military.

    With regard to your EPA hypothetical, I think you would have to clarify the facts a little. If, as was the case with the military and DADT, a ban on having openly gay employees occurred because of objections to gays within the EPA, then I think we would see a focus on changing the minds of EPA leaders. If, however, a ban on gay hiring in the EPA was created in spite of the position of the EPA, then you might see a focus toward the President and Congress. In either case though, the EPA would be discriminating in its hiring, and therefore would be in violation of the law schools' anti-discrimination policy.
    3.7.2006 12:15pm
    dk35 (mail):
    Oh, and back to the original post. I wonder if Dean Polsby released a similar statement after Kelo.
    3.7.2006 12:34pm
    David M. Nieporent (www):
    As someone who happens to believe that DA/DT is terrible law, I appreciate the protest. I think it's appropriate for those who object to discrimination to make a statement rather than silently accede,
    In that case, wouldn't it have made more sense to, you know, actually try to do something about the policy? Why not actually challenge DA/DT?

    Either you succeed, in which case you've accomplished what you set out to do, or you fail, but in such a way as to make a direct statement rather than the indirect one the challenge to the Solomon Amendment represented.
    3.7.2006 12:38pm
    Walter Sobchak:
    Sorry to see this thread on VC -- most of these posts could pass for witty or thoughtful on XOXO.
    3.7.2006 12:38pm
    David M. Nieporent (www):
    Hey, wait a minute. Georgetown is a Catholic institution, and the Catholic faith holds homosexuality to be a disorder and homosexual acts as sinful. How can Georgetown maintain that discrimination as wrong, when the Roman Catholic Church holds the same discrimination as necessary?
    The Roman Catholic Church may consider homosexual acts as sinful, and it might even hold homosexuality to be a "disorder," but I'm pretty confident that the Roman Catholic Church does not hold that job discrimination against homosexuals is "necessary."
    3.7.2006 12:45pm
    Steve:
    Challenge DA/DT as what? Unconstitutional? I would have thought that horse has long since left the barn.

    The point the law schools are making, and agree or disagree as you choose, is that DA/DT may be settled law but this is still discrimination, and the military recruiters who come to campus are no different than recruiters of any other employer who discriminates. It's a reminder that discrmination in the military is not some fact of life we just have to accept, but a policy of discrimination that remains subject to change.
    3.7.2006 12:47pm
    David M. Nieporent (www):
    Challenge DA/DT as what? Unconstitutional? I would have thought that horse has long since left the barn.
    Yes, as unconstitutional. It seems to me that in the post-Lawrence era, there's a horse still waiting in the barn.

    But as I said, even if they lose such a challenge, it would certainly be "making a statement" as a "protest," would it not?
    3.7.2006 1:02pm
    Steve:
    Sure, that would be a fine idea for a protest. I still find it odd when the supporters of a cause are asked to take advice on how to protest from people who disagree with their cause in the first instance.

    I think there would be a difficult standing issue confronting any law school who tried to challenge DA/DT on constitutional grounds, among other things.
    3.7.2006 1:42pm
    Brian G (mail) (www):
    This was a great decision, and I wholly agree, as a 2L at the U of New Mexico.
    3.7.2006 1:43pm
    David M. Nieporent (www):
    I still find it odd when the supporters of a cause are asked to take advice on how to protest from people who disagree with their cause in the first instance.
    I don't disagree with overturning DA/DT. (I did think the Solomon Amendment challenge was legally weak, if not completely meritless.)
    3.7.2006 1:53pm
    Jeek:
    I think it's quite silly to argue that anyone who believes in a principle must be willing to lose their job/livelihood/etc over it, and I note that 95% of such arguments are made by people who disagree with the principle at stake in the first instance.

    Would law schools be out of business if they didn't get Federal dollars? What is the exact scope and nature of Federal funding of law schools? How many Federal dollars do law schools get, and why? (I understand that funding of the entire university is at risk, and not just the law schools, but still I am curious.)

    On the other hand, plenty of people think it is not "silly" to argue that you should not support a war unless you are personally prepared to fight in it...
    3.7.2006 1:57pm
    KMAJ (mail):
    Just a layman's simple observation, the argument appears to be about social engineering as an exercise of law. In other words, trying to get something enacted through the courts that one cannot get through at the voting booth. Another arrow in the quiver of judicial activism ? I am aware that one person's judicial activism is another person's 'right thing to do'. For me, it comes down to should the law shape a free society or should a free society shape the law ? The former is authoritarian in nature, the latter is democratic. Wouldn't the proper venue be the legislative and electoral process, instead of the courts ?
    3.7.2006 1:58pm
    Mark F. (mail):
    Most law schools have many well off alumni they could tap, if need be, to survive off of the federal dole. They might also try cutting their expenses. Why law school education has to cost so much is beyond me.
    3.7.2006 2:02pm
    dk35 (mail):
    David Nierporent,

    Glad to hear of your opinion regarding DA/DT. Don't forget to contact your Congressman and make sure he/she signs on as a co-sponsor of the Military Readiness Enhancement Act, currently pending in the House.
    3.7.2006 2:05pm
    Steve:
    Others have already pointed out that law schools do not typically subsist off federal money, but other segments of the university certainly do. This fact makes the "put your money where your mouth is" argument quite the non sequitur.
    3.7.2006 2:09pm
    KMAJ (mail):
    Steve,

    Without those other segments of the university, would there be any law schools ? While there may or may not be subsistence off federal funds, I don't think one can deny that law schools do enjoy benefits of those federal funds. All law students must graduate from a other segments of a university before attending law school.
    3.7.2006 2:24pm
    Steve:
    Of course law schools derive benefits from being associated with larger universities. That's why you see many independent law schools choosing to affiliate with established undergraduate schools that lack a law school. However, the point remains that the law school is not the one getting the federal money; they have no power to make a decision on behalf of the entire university to forego federal funding, nor would it directly impact the law school's bottom line if they did.

    I suppose, if you want to take this to the absurd conclusion, the law school could attempt to secede. But really, the point I made hours above still stands, which is that you can be honestly and sincerely opposed to discrimination and yet prefer not to make an extreme sacrifice in order to oppose that discrimination. The statement "if you felt strongly enough, you'd give up a few million dollars" is true, on some level. The statement "if you actually cared about discrimination (as opposed to just having an anti-military bias), you'd give up a few million dollars," is a bit of a red herring.
    3.7.2006 2:39pm
    David Matthews (mail):
    "On the other hand, plenty of people think it is not "silly" to argue that you should not support a war unless you are personally prepared to fight in it..."

    Sure, and I suppose you shouldn't support putting out fires unless you're personally prepared to be a fireman, or arresting dangerous criminals unless you're personally prepared to bring 'em in yourself, or saving drowning people unless you're personally prepared to be a lifeguard....

    I support lots of people who put their life on the line doing things I'm totally incapable of doing, and personally unprepared to do. Why (when) should fighting in a war be different?
    3.7.2006 2:53pm
    Clayton E. Cramer (mail) (www):

    I suppose, if you want to take this to the absurd conclusion, the law school could attempt to secede.
    Can we persuade them to secede from not just the federally funded universities, but also from the United States? They don't want those nasty people who defend the U.S. polluting their beautiful fantasy world. Let Harvard Law defend Harvard Law from al-Qaeda.

    This ought to go over real well. "Yoo-hoo, Mr. Bin Laden! We're Harvard Law School, and we think that homosexuality is so important that we are willing to sever all ties with those Neanderthals in the cammies. We have no beef with you! Let's be friends!"

    And yeah, I want to see the San Francisco Bay Area join Harvard Law in their own private United Blue And Lavender State of America! This could be very entertaining. Remember: the Religious Right is practically the ACLU compared to Islamofascism--but Yale has already demonstrated that it would rather have the Taliban's Ambassador-at-Large on campus, instead of JAG.
    3.7.2006 3:03pm
    Steve:
    Oh, I didn't realize the gay agenda was diametrically opposed to the goal of defending our nation. I didn't realize that it was good for national security when the military kicks out Arabic translators for being gay, and that people who oppose DA/DT want al-Qaeda to win. Thanks for clearing that up.
    3.7.2006 3:19pm
    Hoosier:
    Let me get away from the invective for a minute and ****try this again****:

    What's "TTT"? And why should I care? And is my alma mater's law school (Notre Dame) TTT or not? (I don't know what it means, but it seems to be bad.)

    Please, someone, enlighten me.
    3.7.2006 3:36pm
    Zywicki (mail):
    I have deleted two extremely inappropriate Comments that were nothing more than personal attacks on GMU students and another Commenter. I recognize that this issue stirs deep emotions, but please let's be respectful. GMU's Dean and individual members of the faculty no more speak for GMU's students, than the administrations and faculty of other law schools speak for their students. Thus it is completely inappropriate--not to mention factually incorrect--to attack George Mason's students in this context.

    So, while I generally take a very light-handed approach to this, I will not allow George Mason's students to somehow be dragged into this.
    3.7.2006 3:36pm
    Volvodriver (mail):
    There are many queries in the thread that inquire the extent to which law schools rely on federal funding. The tone suggests that the answer is "not very much." Setting aside the issue of the reliance of the rest of the university, especially in science or medicine, on federal funding, I think that the comments in the thread severely underestimate the degree to which even an independent law school relies on federal funding through the federally subsidized loans through which the students pay their tuition.

    My impression of the Hillsdale College model is that, in order to duck Title IX regulation, the college was forced not just to refuse direct federal funding, but to deny its students the abililty to get federally guaranteed student loans.

    How many law school grads in the last two decades have managed to get through three years of law school without the need to resort to student loans?
    3.7.2006 3:50pm
    Leland:
    Some people just don't get the concept that DADT is not the military's policy.

    Congress doesn't need to admonish the military for a policy that Congress wrote. If Congress wants to force the military to allow homosexuals, then they need only pass a law requiring the military to not discriminate on the bases of sexual orientation. Sure, a few recruiters may violate such law, but then any lawyer should know how to handle such a violation.

    Most of the military has always been against DADT. Most military institution have a simplified code along the lines: "do not lie, and do not tolerate liars". DADT violates this code by telling homosexuals to lie about their orientation and for others to ignore the situation. True, when DADT was enacted, many in the military also were against homosexuals serving. Many protested to Congress which wrote the DADT law that then President Clinton signed. Funny, veterans knows who to protest, but it is a shame that the "elite" law schools can not figure out how the process works.

    DADT is a bad policy. The Soloman Amendment is not. If law schools continue to be ignorant of the political process, then the American taxpayer shouldn't be burdened by them. If law schools want to protest the military, then that is fine. Just don't be surprised if people notice that they are protesting the military and recognize the rational is illogical. It is clear, some elite law schools simply don't like the military (for example Yale, who's argument for FAIR is undercut by their recruitment and enrollment of a former Taliban official).
    3.7.2006 4:03pm
    Clayton E. Cramer (mail) (www):
    Steve writes:

    Oh, I didn't realize the gay agenda was diametrically opposed to the goal of defending our nation. I didn't realize that it was good for national security when the military kicks out Arabic translators for being gay, and that people who oppose DA/DT want al-Qaeda to win. Thanks for clearing that up.
    I hope that this isn't a surprise to you, but the left (your allies) are putting a lot of energy into making sure al-Qaeda wins. The ACLU lawsuit about surveillance, for example--a position that even most Democratic Senators don't seem to want to question, now that they have been briefed.
    3.7.2006 4:10pm
    dk35 (mail):
    Leland,

    So, is the Bush administration anti-military because it granted the Taliban guy a visa?
    3.7.2006 4:13pm
    Kovarsky (mail):
    JLR

    It is unfortunate that Mr. Kovarsky missed my praise of Justice Breyer in the comment that he found "annoying." I surmised that Mr. Kovarsky misunderstood the original comment and thus I reasserted my citation and praise of Justice Breyer. Justice Breyer during oral argument asserted his agreement with the Millian ideal of countering speech with speech (as Justice Breyer writes about in Active Liberty).

    Whoa! I read your post very carefully. Your laudatory remarks about Breyer were in fact what prompted me to say that I hope this changed his image.

    I called your comment annoying because of the liberals are authoritarians remark. I actually meant my comment to then reflect I was actually quite appreciative of the positive light in which you painted Breyer!
    3.7.2006 4:15pm
    Steve:
    I hope that this isn't a surprise to you, but the left (your allies) are putting a lot of energy into making sure al-Qaeda wins.

    This statement is so inane that the mere act of making it would cause any rational person to reevaluate his underlying assumptions. I assume you are not reevaluating any of your underlying assumptions.
    3.7.2006 4:19pm
    No New Dale:
    Look, let's move on to the next phase. I take it that many law schools will take Georgetown's path and accept the Court's opinion as an invitation to speak out against the military recruiters rather than barring them from campus. At what point, however, would such speech or protest constitute unequal "access" to students, i.e., could the level and type (or place) of counterspeech result in a situation where the military's access is not "at least equal in quality and scope th the access to campuses and to students that is provided to any other employer."

    Drawing an analogy to antidiscrimination laws, could a law school's failure to control protests or student/faculty hostile speech be equated with an employer's failure to prevent "conduct that has the purpose or effect of unreasonably interfering with an individual's [recruiting] or creating an intimidating, hostile, or offensive [recruiting] environment."
    3.7.2006 4:21pm
    Kovarsky (mail):
    Smithy,

    If these schools don't want us to recruit there, then maybe we shouldn't bother protecting them from terrorist attacks. It would be a cruel irony to see a professors who have spent so much time whining about wiretapping, extreme rendition, and the like see the consequences of coddling terrorists first-hand. Maybe then they'd learn that civil liberties don't mean much in the face of a suitcase nuke.

    Your mindless repetition of powerline and dukes of hazzard approach to constitutional interpretation are fine, but I submit that perhaps you've crossed the line when you're condonig terrorist attacks on legal scholars you disagree with.
    3.7.2006 4:24pm
    Justin (mail):
    Have conservatives actually bought their own rhetoric about how DADT is a Congressional mandate? Even though it was the military that wanted something at least that discriminatory (they actually wanted the right to ask and make tell), and that if the military brass decided they wanted to terminate the policy it would be gone tomorrow?

    Yes, Congress could require the military to treat gays equally. But Congress can also prevent companies from polluting the environment with strict regulation - this doesn't mean people who boycott companies whose environmental policies only reach the legal minimum should be boycotting Congress instead.

    Furthermore, the military could stop enforcing DADT (such an action would be unreviewable as nobody would have standing to challenge). Since "Congress" is pretty difficult to boycott, it seems like the argument that law schools should have focused on Congress rather than the military is silly - particularly so given that their boycotts are just their attempts to enforce nondiscrimination policies of broad applicability.

    Regardless, though the Supreme Court's decision in this case is confusing and will require years to untangle into useful 1st Amendment law (or more likely stripped to its facts), the Supreme Court has basically stated the same thing: Don't like it, take it up with Congress.

    One last note - what's particularly shocking is the case's wholesale adoption of the executive's ahistoric interpretation of the Solomon Amendment is disturbing - the Supreme Court's failure to put real constraints on Article II power since the beginning of the Rehnquist Court will be our generation's Lochner. Thankfully, there was no "Chevron" expansion in the current case tucked in.
    3.7.2006 4:25pm
    Justin (mail):
    "Your mindless repetition of powerline and dukes of hazzard approach to constitutional interpretation are fine, but I submit that perhaps you've crossed the line when you're condonig terrorist attacks on legal scholars you disagree with."

    Kovarsky, ummmm...that's not the line. ::hans you binoculars:: See that, way back there? THAT'S the line...
    3.7.2006 4:26pm
    Justin (mail):
    Errata - "hans" should read "hands"
    3.7.2006 4:26pm
    bennie (mail):
    TTT is an internet term for anything that is less than prestigious and in particular for law schools outside the top 14.
    3.7.2006 4:41pm
    KMAJ (mail):
    Steve,

    I am not the one who put forth the 'spend your own money' argument. I proferred the counter argument to law schools not subsisting off federal funding (which might be the actual red herring) as law school students get federal money to pay for their schooling as well as benefit from the university at large providing the law school benefits from said federal funding. I also proferred the argument of trying to achieve through the courts that which you cannot achieve through the legislative or electoral process.
    3.7.2006 4:41pm
    Cornellian (mail):
    I also proferred the argument of trying to achieve through the courts that which you cannot achieve through the legislative or electoral process.

    An example of this being the lawsuit challenging as unconstitutional the campaign finance reform legislation duly enacted by Congress and signed into law by President Bush.
    3.7.2006 5:03pm
    Guest44 (mail):
    TTT = third tier toilet. See http://xoxohth.com if you really want to know more. :)
    3.7.2006 5:04pm
    boonelsj (mail):
    Well, I for one welcome military recruiting on my campus, if only because it'll make the fall interview program a little more interesting. If people want to go work for an employer with discriminatory employment practices, that's their prerogative.
    3.7.2006 5:43pm
    Steve:
    If people want to go work for an employer with discriminatory employment practices, that's their prerogative.

    Well, if by "people" you mean non-gay people, then yeah. If by "people" you mean people, then it's not necessarily their prerogative, now is it?
    3.7.2006 6:05pm
    JLR (mail):
    Let me first say that I appreciate Mr. Kovarsky's conciliatory post.

    One last note that hopefully will end this contretemps for good:

    I find it interesting that Mr. Kovarsky implied that he thought I originally meant to say "liberals are authoritarians." But you (Mr. Kovarsky) also seem to imply that you were able to ascertain that I forgot to explicitly add the quantifier "some." However, instead of making that precise, narrow point originally, you instead provided nonspecific criticisms of my post generally. As a result, misunderstandings ensued.

    You (Mr. Kovarsky) also did not indicate in your original critical post (from 3.7.06 12:20 am) that I had cited Justice Breyer's advocacy of speech to combat speech in my original 3.6.06 9:36 pm post ( link here) . As a result, your more recent rephrasing of your criticism (as well as your most recent conciliatory message) implied that you were referring to my 12:33 am mention of Justice Breyer only (which was posted 13 minutes after your original critical post). I cited Justice Breyer originally at 9:36 pm as well.

    It is important to note that it appears that Mr. Kovarsky agrees with my contention that there is a difference between true liberals (like JS Mill, Stephen Breyer, and others) and people who truly are left-wing authoritarians. Such left-wing authoritarians often call themselves "liberals" but in my opinion are not truly liberals in the proper understanding of the term.

    Sbw's post of 3.7.06 8:08 am, which concurred with and defended my posts (link here), indicates the importance of understanding what the meaning of "liberal" truly is.

    So with all due respect to Mr. Kovarsky (who is being conciliatory), a person who demands precision from others must be precise in turn. Yes, my original phrasing of the offending sentence in the original 3.6.06 9:36 pm post was imprecise. But your criticism was generic, not specific. Also, you failed to note in your 3.7.06 12:20 am post that I had cited Justice Breyer as a paragon example in my original 3.6.06 9:36 pm post. Hence, the contretemps. And hopefully, such misunderstandings will stop here.

    I appreciate the desire to turn down the temperature; this comment thread and all comment threads should offer more light and provide less heat. It is also my contention that part of the reason for the imbalance of light and heat has to do with the built-in bias of blogs (and blog comment threads) to sacrifice precision in order to gain speed. (But that is a different topic for a different time.)

    Thanks again everyone for reading and/or rereading my posts carefully so that their true spirit can be understood. And thanks all for being able to look past the original 9:36 pm post's relative imprecision. I greatly appreciate it.
    3.7.2006 6:32pm
    JLR (mail):
    One correction to my 3.7.06 6:32 pm post -- "paragon" is not an adjective. "Paradigmatic" (which does mean something a bit different from "paragon") should have been used instead. My apologies.
    3.7.2006 6:40pm
    Smithy (mail) (www):
    And yeah, I want to see the San Francisco Bay Area join Harvard Law in their own private United Blue And Lavender State of America!

    LMAO.

    It would be good riddance.
    3.7.2006 6:44pm
    JLR (mail):
    One more thing: obviously, Justice Breyer's comments during oral argument that one should use more speech to counter speech one doesn't like -- which mirrors JS Mill's arguments in favor of freedom of speech in On Liberty -- are a paradigmatic example of the sentiments and philosophy of a truly liberal and commendable approach to philosophical and legal issues surrounding free speech in our society. I believe that was clear from my latest post (and all of my posts), but I just want to make it absolutely explicit.

    Thanks again.
    3.7.2006 6:47pm
    Smithy (mail) (www):
    The ACLU lawsuit about surveillance, for example--a position that even most Democratic Senators don't seem to want to question, now that they have been briefed.

    Actually, they were being briefed all along. That's what so laughable about their response to the NYT story. They had know about it for years, but when it hit the press, they decided to grandstand against it to pimp for a few votes. Shameless, just shameless.
    3.7.2006 6:47pm
    A.W. (mail):
    Anon:

    > I hope you served

    I hope you look up the phrase "civilian control of the military." This chickenhawk bullsh-t is tiresome. And 9 out of 10 times, it is used hypocritically, anyway.

    If you persist in this lameness, then I have two questions for you. The first is when did you serve and in what branch? The second, I will ask in response to your response.

    > It hurts America for a lawyer to call things "left" and "right" wing.

    Oh, yes, there is no left wing. *rolls eyes*

    > Also, you have not explained how the military was actually hurt by Yale's action.

    I think the Supreme Court did a wonderful job on that subject. Besides, Yale et al didn't do this as a favor. It was calculated to hurt the military, and I presume it did, to a degree.

    > Do they really use on-campus interviews?

    Most large law firms did when I was going. I don't see why the military wouldn't want to, too.

    > You would know that 8-0 rulings this term are quite frequent.

    So? And? It doesn't make the losing side any less wrong.

    > Has nothing to do with "incompetence" but rather the internal "politics" of the court.

    If "politics" is at the bottom of this, it is because the liberals of the court recognized that they were going to gut Title IX and the FRA. The politics, if there is any, comes from the fact that the court is trained to look at the long-term effects, and not merely the benefit of the moment.

    Justin

    > When Joe Wilson (did you mean Valerie Plame?) breaks a law and Al Queda has legal jurisdiction over the United States, you might, MIGHT, have a point.

    Nope, you simply missed my point. The pro-freedom-of-the-press forces should have figured out they were opening pandora's box when pressing for an investigation of that leak.

    > Back onto topic, am I the only one who "doesn't get" why George Mason would file an amicus curiae asking the Supreme Court to take away their rights?

    Um… patriotism? Or call it enlightened self-interest. They know that if the military is weakened, then the are more likely to be killed by islamofascist terrorists.

    Or better yet, they care about gay rights, and recognize that the greatest threat to gay rights is islamofascism and not George W. Bush. (See? Long term effects, not short just term gains.)

    Or maybe they want to make sure women, minorities and handicapped people cannot be excluded from private universities, based on the suicidal precedent that the liberal schools were advocating. (See? Long term effects, not just short term gains.)

    Locke

    > There has been no analogous set of events regarding gays.

    Haven't you heard of the famous "Gloria" regiment in the Civil War? :-) I think it was the 69th Massachusetts...

    Steve

    > I think it's quite silly to argue that anyone who believes in a principle must be willing to lose their job/livelihood/etc over it, and I note that 95% of such arguments are made by people who disagree with the principle at stake in the first instance.

    Sure, why should dissent be hard? *rolls eyes*

    And I am sure you would feel the same way if the person wanted to exclude black people, instead of the military right? Like if someone wanted to create the Nathan Bedford Forrest Whites Only School of Law, and they wanted to keep federal funds, while excluding all black people, you would feel the same way, right? Right?

    And what of the Federal Government's right to associate and disassociate? For instance, liberals urged the FG to disassociate with South Africa in the 1980's, and rightfully so. Can't the government say "I so disapprove of your behavior, I want nothing to do with you?" Or is that principle only applicable if the liberals likes the reasons for that decision?

    Anyway, this was an attempt by liberalism to cut their nose to spite their face. That is why the liberals on the court rejected it: they recognized it would be a disaster for rights, not a boon for them.
    3.7.2006 7:06pm
    dk35 (mail):

    Justice Breyer's comments during oral argument that one should use more speech to counter speech one doesn't like -- which mirrors JS Mill's arguments in favor of freedom of speech in On Liberty -- are a paradigmatic example of the sentiments and philosophy of a truly liberal and commendable approach to philosophical and legal issues surrounding free speech in our society.



    JLR, I'm with you on this. However, that's not really the major take-away from the Court's decision. What the Court actually seemed to say is that Congress has the right to force military recruiters onto the private property of private universities (even if they don't take a penny of federal funding), as well as force the private universities to promote the recruiter's presence and provide them with resources that allow them to conduct interviews.

    I know that most of libertatarians who frequent this site are generally of the hawkish sort, but are there truly none who are even a little queasy about this sort of government intrusion onto private property?
    3.7.2006 7:08pm
    Yankee_Mark:
    What's laughable about Smithy (and others) meekly going along with open-ended surveillance programs &sweeping executive powers is that sooner or later Hillary or some other Democrat will be elected President and have Reno II as Attorney General who will then have the power to designate anti-abortion groups as terrorists and claim the ability to indefinitely detain &surveil them without charge or due process. They'll certainly be sorry then...
    3.7.2006 7:13pm
    Steve:
    And I am sure you would feel the same way if the person wanted to exclude black people, instead of the military right? Like if someone wanted to create the Nathan Bedford Forrest Whites Only School of Law, and they wanted to keep federal funds, while excluding all black people, you would feel the same way, right? Right?

    Wow, you sure got me with this zinger. Yes, keeping employers who discriminate from interviewing on campus is exactly the same as keeping blacks from attending your school. I really have nothing to say in response, that's how good this argument is.
    3.7.2006 7:20pm
    Yankee_Mark:
    DK, I think the narrow tailoring of this as a military-specific issue (despite the breadth of the intrusion & impact granted to the military) keeps it off the radar of some folks of libertarian bent. I personally feel that the Solomon Amd is constitutional and should be upheld and I quite agree that the blank check granted to the military by this ruling went way way beyond what was necessary...
    3.7.2006 7:20pm
    Brad (mail):
    So lets see if I have this right. Yale bans military recruiters from their campus because they believe the military discriminates against gays. In the meantime they give a free education to a former spokesman for the Taliban, (which treated gays very well), because that promotes diversity on their campus. The irony is almost too much to bear.
    3.7.2006 7:22pm
    dk35 (mail):
    Brad,

    The irony doesn't stop there. This guy apparently was offered a position in Karzai's government. Had he accepted, he would have been a member of a government supported by the Bush administration, which, by the way, was responsible for giving the guy a visa to come to the US.

    Irony is an amazing thing. It can hit left AND right. Who would have imagined that?
    3.7.2006 7:28pm
    Kovarsky (mail):
    Brad,

    The standards for admission to the college are very different from the standards of who may recruit at the law school, both in reality and philosophically - despite whatever superficial connection you're making here.

    I can promise you that Yale has admitted plenty of students quite critical of homosexuality.

    I also think you should be careful in your wording. Yale didn't admit him "because of diversity." It refused to deny or revoke admission (he's actually not a student at Yale College yet; he's what's called a "special student" which does not belong to any school at the university). In response to the notion that it should have revoked "admission" (again, he wasn't admitted to anything - he's only applying for admission to the college next semester), the school simply noted that it was important for the student body not to exclude solely based on political beliefs. It did not admit him BECAUSE of diversity (although this may have been a factor); it refused to revoke his admission because of its commitment to diversity.

    Whatever you think of the politics of the solomon amendment - and I happen to think it's fine and that schools meet offensive speech on fair terms of the market place of ideas - the interest in diversity of recruiting at a law school is small fries compared to the interest in diversity of a student body itself.

    Yale is extraordinarily special in the diversity it achieves relative to other similarly situated schools (Princeton is like one big landlocked yacht in the middle of new jersey), and it is not something to be equated with law school recruiting preferences.
    3.7.2006 8:06pm
    Ciarand Denlane (mail):
    This comment is off-topic.

    It least it's off topic given the post; I haven't read all 169 comments. It's the "169 comments" staring me in the face -- probably 174 comments by the time I hit post comment -- that I haven't read that nevertheless prompt this comment.

    What is the etiquette or norm for a commenter, such as (I wouldn't mind your thinking) me in this instance, who reads a post and has an absolutely unique and brilliant insight to share with the world, and then sees that "169 comments"? Can one post one's brilliantly unique concept without first reading the 169 comments to see whether 31 other people have already had that unique insight or whether 18 people have already patiently explained why the brilliant insight is, um, totally wrong? More tersely stated, are commenters on blogs like this supposed to have read the prior comments as a precondition to commenting, or is it enough to have read the post?
    3.7.2006 8:14pm
    Enoch:
    the school simply noted that it was important for the student body not to exclude solely based on political beliefs.

    Let's see,

    Yale "emphasizes the training of the discipline of the mind, the enlargement of knowledge, and the cultivation of sympathy of spirit through its curriculum, its special form of residential life, and its extracurricular opportunities."

    Yup, tha Taliban is on board with that - especially the "cultivation of sympathy of spirit" part.

    Yale "attempts the training of active and energetic citizens who are accustomed to living with those different from themselves in race, nationality, upbringing, and belief."

    Oh yeah, the Taliban were especially noted for their tolerance of those different from themselves in race, nationality, upbringing, and belief.

    In short, the political beliefs of the Taliban were fundamentally antithetical to the stated goals of a Yale education. No problem! I am sure Yale will make that Taliban into an enlightened thinker fully appreciative of the benefits of diversity. Tough job, but if anyone can do it, Yale can...
    3.7.2006 8:25pm
    Enoch:
    sooner or later Hillary or some other Democrat will be elected President and have Reno II as Attorney General who will then have the power to designate anti-abortion groups as terrorists and claim the ability to indefinitely detain &surveil them without charge or due process. They'll certainly be sorry then...

    Fortunately, the Left will remain in the vanguard of the struggle for civil liberties, and will energetically champion the rights of anti-abortion "terrorists", no matter how detestable their views may be.

    I know that most of libertatarians who frequent this site are generally of the hawkish sort, but are there truly none who are even a little queasy about this sort of government intrusion onto private property?

    If you don't want the government to "intrude" with its military recruiters, don't take government money! I have no respect at all for someone who demands unstinting largesse with no strings attached.
    3.7.2006 8:31pm
    A.W. (mail):
    Steve

    > Wow, you sure got me with this zinger. Yes, keeping employers who discriminate from interviewing on campus is exactly the same as keeping blacks from attending your school. I really have nothing to say in response, that's how good this argument is.

    Oh, so you only have freedom of speech if you approve of the message, eh? Well, sorry but the law cannot operate on the same hypocritical "principles."

    If exclusion is a form of speech, or at least protected expressive conduct, it counts for any group excluded. It doesn't suddenly become right or wrong, depending on the group excluded. What you want is for the kinds of "speech" you like to be protected, and the kinds you don't like to be suppressed.
    3.7.2006 8:32pm
    Ric Locke (mail):
    Sorry about the delay responding. I work for a living, and am out of the country to boot.

    Steve:

    Is it your contention that the military is actually in favor of integration, but they feel they need to sell the public on it? Others have contended that the military is opposed to DA/DT because they view it as an inescapably dishonest policy.

    Chuck(le):

    However, it doesn't seem to be working that well.

    Case in point, the recent story of the gay paratroopers of the 82d.


    The military is, continues to be, and will continue for a long time to be (if it ever changes), opposed to adding sexual relations between line soldiers and/or the pudenda-swinging egotists of the Berkeley Gay Pride Parade to its current set of problems. It also realizes, as apparently none of the (other) longwinded posters here do, that its members are young adults at the height of their physical and sexual prowess, that such people tend to be fiercely defensive of their own sexual abilities, and that the result of this is going to be violence between anti-gay bigots and gays which will materially degrade readiness. For one thing, they're going to need a shitload of JAG officers to defend and prosecute all the cases, and every penny of resource that goes into that effort will come directly out of resources available for combat readiness.

    The military also continues to be anti-woman, and will continue to be despite successes in that direction.

    But the American military is also conscious ("extremely proud" would be a better characterization) of its status as subordinate to the civilian authorities. If Congress tells the military to do something, it will do its best to comply. That does not mean it will successfully accomplish the assigned task, and it does not mean it will be able to accomplish other tasks in the meantime. That also does not mean that every single member of a multimillion-member organization will "get the word", be able to comply directly with it, or do an effective job of compliance.

    I know of no one who is really happy with "Don't Ask Don't Tell", at least partly because, as has been noted here in several instances, it is fundamentally dishonest. However, the military has been tasked to cope with gays, and this is the best policy and/or strategy it was able to come up with that would allow it to do so, while maintaining unit cohesion and discipline, at a price the Congress was willing to pay. Yes, Congress is the one that passed the law establishing the policy; yes, Congress can change it at any time; yes, the policy was established at the advice of the military, not as a good thing in itself, but as the best of a set of bad choices.

    Opening up -- allowing gays to participate openly, with all the defiant cross-dressing and outrageous behavior that implies -- won't work. What it will accomplish is (1) a goodly number of dead and maimed queers, followed by (2) a massive witchhunt-and-fingerpointing exercise characterized by billions (with a B) spent on lawyers, investigators, and Courts Martial, ending with (3) en-masse imprisonment, punishment, and/or discharge of huge numbers of the military's most effective and valuable members. Please note that there is nothing on that list that implies effectiveness as a military. That's because it isn't there, and won't be.

    Basically you have three choices:
    A. A "straight" military
    B. A "queer" military
    C. No military.

    Since there aren't nearly enough homosexuals who want to serve in the military to form one entirely taken from that source, the real choices are (A) and (C). And (C) divides into two possibilities: (C.1) No military at all, and (C.2) a gigantic, political, nightmare entity, nominally military but serving no real purpose whatever while gobbling up money and other resources at the rate only a military can manage. Guess which one the present-day military authorities consider more likely.

    No, Chuck(le), it isn't working very well, but like Dr. Johnson's dancing bear, it's absolutely remarkable that it's working at all. It may very well be that nothing will work to the specified end, but if anything can work DADT is it. If you oppose DADT, or oppose coping with military recruiters on the ground of their implementing DADT, you are either anti-gay, anti-military, or too confused and ignorant to have useful advice. If you support getting the Congress to pass a law requiring the military to accept gays on equal terms you quite definitely fall into the second category, whether intentionally or no. And please consider the name "Sgt. Hester". If you don't recognize it or know its meaning and importance, you are definitely in the third group.

    Regards,
    Ric
    3.7.2006 8:33pm
    dk35 (mail):
    Enoch,

    I think you may need to go back and read the actual Supreme Court opinion, which says that it would be permissible under the constitution for Congress to force military recruiters onto the private property of private universities even if those universities took no federal money at all.
    3.7.2006 8:36pm
    A.W. (mail):
    dk35

    Well, i think there you put your finger exactly on the lynchpin of the court's reasoning. (At the risk of mixing metaphors.)
    3.7.2006 9:12pm
    Brad (mail):
    Kovarsky,

    So are you saying that if I applied to Yale, they would let me be a "special student"? Is this a Yale policy that applies to all Americans, or just special cases like our friend from Afganistan?
    3.7.2006 9:26pm
    Kovarsky (mail):
    Brad,

    It is a policy that applies to everyone. In fact, up until this story, every special student I had known there was white and American. You don't know what you're talking about. The "special" status doesn't relate to his background. It simply denotes that he is taking classes but is not enrolled in a school there.

    But your completely off-target snide comment was appreciated.
    3.7.2006 9:37pm
    Kovarsky (mail):
    Enoch,

    Yes, if only Yale could be as tolerant as GMU.
    3.7.2006 9:38pm
    JLR (mail):
    dk35, you raise an important issue about how antithetical to "libertarianism" the Rumsfeld v. FAIR decision might be. And more importantly, that issue addresses the substantive elements of the decision.

    This brings us back to a lengthy comment I made yesterday that has gotten lost in the sauce.

    I shall repost it here (mutatis mutandis) for your reading convenience.

    -----------

    Based on my reading of Rumsfeld v. FAIR, it is true that Chief Justice Roberts makes clear that it would have been constitutional if Congress had directly imposed the Solomon Amendment requirement upon the universities. On slip. op. page 10, Chief Justice Roberts cites Speiser v. Randall, 357 U. S. 513, 526 (1958) to support the claim that, if the access requirement can constitutionally be imposed directly by Congress, then it is constitutional as a condition of receipt of federal funds.

    This brings us back to first principles. I have the impression that an unstated premise of your post is that it is not antithetical to libertarianism for the Supreme Court to strike down Congressional legislation even if such legislation is deemed constitutional after use of an accepted mode of constitutional interpretation.

    The Third Circuit simply did not get this case correct as a matter of constitutional interpretation in my opinion. There obviously is a good argument to be made on the other side; otherwise, the Supreme Court never would have taken the case as the Third Circuit never would have agreed with the respondents.

    However, part of judicial review is to never forget that it is a Constitution that is being expounded (to paraphrase Chief Justice John Marshall in McCulloch v. Maryland).

    As such, the actual reasoning of the decision is not about what is normatively good or bad, but rather about what is constitutional and what is not. And it is my belief that the Solomon Amendment is constitutional. (Technically, given the nature of the case, the Court held that the Third Circuit was wrong in believing that the Solomon Amendment likely violates the First Amendment. There is a crucial difference between the two, but I won't belabor that difference in this particular blog comment.)

    My original post was simply approaching the case normatively, rather than descriptively. But according to a descriptive approach, the Supreme Court would have abdicated their proper role as interpreter of the Constitution if they had ignored their constitutional judgment by codifying a policy preference to circumscribe Congress's power regardless of Congress's actual Article I powers. And that to me is empirically and normatively an intolerable violation of our constitutional system.

    Regarding the normative aspect of the case alone, there is much to disagree about. In theory, universities should be free to expel who they like from job fairs. Of course, in our American governmental system, Congress has the power of the purse. It can use its Article I powers to help recruit law students into the armed services.

    The right that FAIR has opposed to that Article I power is freedom of speech. But "freedom of speech" of course is not exactly the same as "freedom of expression." As a result, a very interesting line of case law has developed over time that has some internal contradictions in it.

    In his opinion for the Court, Chief Justice Roberts in fact resolved a few of those contradictions silently and elegantly. For example, Chief Justice Roberts silently restored the third prong of the original O'Brien four-prong test while quietly but elegantly shoving to the side Justice Brennan's unfortunate and sadly illogical revision of the test in Texas v. Johnson, in which Justice Brennan claims the third prong of the test is also "outside" the test.

    So, is this ruling normatively good (regardless of what the Constitution says)? I'd say it is, but ultimately such choices are based on policy preferences. And constitutional interpretation is different from merely implementing one's own policy preferences.

    If Americans believe this decision is not consistent with broader liberty principles upon which this nation is founded, there are remedies. The narrowest and easiest remedy is to either petition Congress to make the necessary changes to the Solomon Amendment and/or vote out members of Congress who refuse to vow to make such necessary changes. The most drastic remedy (and also the most difficult to achieve) would be to agitate for a constitutional amendment that would somehow address this situation.

    But in terms of judicial review, the key, as always, is to remember first principles of constitutional interpretation. To quote Chief Justice Marshall again, "we must never forget that it is a Constitution we are expounding."

    Thanks again. :-)

    Link to original post dated 3.7.06 12:23 am
    3.7.2006 9:55pm
    Visitor Again:
    dk35

    What the Court actually seemed to say is that Congress has the right to force military recruiters onto the private property of private universities (even if they don't take a penny of federal funding), as well as force the private universities to promote the recruiter's presence and provide them with resources that allow them to conduct interviews.

    I know that most of libertatarians who frequent this site are generally of the hawkish sort, but are there truly none who are even a little queasy about this sort of government intrusion onto private property?


    I'm not a libertarian, but I like to think I'm a civil libertarian, and a great deal of this opinion makes me queasy at a minimum. The opinion was decided on very broad grounds and it is not at all limited to regulation in the interests of the military. It has tremendous implications for the scope of government regulation of conduct on private property. That there was not even a single concurring opinion attempting to narrow some of its implications is astounding.

    Just as an example, I recently mentioned the Alpine Village German restaurant case, which David Bernstein at first thought must be an urban legend because he deemed it so outrageous. Roberts' reasoning and his reading of the precedents, some of which was manipulative, certainly goes a long way to gutting any constitutional argument the Alpine Village's German owners might have had against being forced under a public accommodations law to serve customers wearing Swastika emblems.
    3.7.2006 10:22pm
    Steve:
    Opening up -- allowing gays to participate openly, with all the defiant cross-dressing and outrageous behavior that implies -- won't work. What it will accomplish is (1) a goodly number of dead and maimed queers, followed by (2) a massive witchhunt-and-fingerpointing exercise characterized by billions (with a B) spent on lawyers, investigators, and Courts Martial, ending with (3) en-masse imprisonment, punishment, and/or discharge of huge numbers of the military's most effective and valuable members.

    Wow.
    3.7.2006 11:27pm
    Smithy (mail) (www):
    A lot of the professors at the these schools that brought the case to keep recruiters off their campuses are Maxists. David Horowitz said there are over 50,000 Marxist professors in the country. It's time for the universities to do the decent thing and fire these clowns.
    3.7.2006 11:51pm
    Lev:
    Maybe it's just me, but it seems to me that "don't ask don't tell" doesn't quite comply with the directive of 10 USC 654

    10 USC 654

    although it may be a decent attempt to mediate between that directive and running a military.
    3.7.2006 11:59pm
    Kovarsky (mail):
    Smithy,

    Yes! All the Maxists smoking the pot and listening to the rock music and reading the toni morrison and doing the postmodernity and buying the newspaper and watching the hollywood and affirmativing the action and persecuting the president and fabricating the hurricane and counting the casualties and stopping the guns and compromising the security and helping the negroes and killing the housewife and testing the science and denying the god!

    Could you be any more of a caricature?
    3.8.2006 12:17am
    GMUSL 2L (mail):
    DK: it would be permissible under the constitution for Congress to force military recruiters onto the private property of private universities even if those universities took no federal money at all.

    So it's clearly constitutional to compel men to not just register for the draft but force them to join the army against their will in a draft supported through the Raise and Support Armies clause, but it's not constitutional to require that campuses admit recruiters so people can voluntarily join?

    Interesting argument. I can't see how it holds water, but interesting nonetheless.
    3.8.2006 1:08am
    David M. Nieporent (www):
    Wow, you sure got me with this zinger. Yes, keeping employers who discriminate from interviewing on campus is exactly the same as keeping blacks from attending your school. I really have nothing to say in response, that's how good this argument is.
    Steve, I think you miss the point. The point (as I understood the original post, anyway) is that the power (of the federal government) to prevent the former is no different than the power (of the federal government) to prevent the latter.

    Liberals already established the precedent -- see Bob Jones -- that Congress can punish institutions financially if they don't comply with Congressional determinations of public policy. Did liberals actually think, at the time they denounced those (such as the Reagan administration) who held other legal opinions, that their own liberal personal policy preferences were the only ones that would be forced on universities? Did they think that (a) liberals would always control Congress, and/or (b) even if liberals didn't, that the courts would always side with them as to which policies were justified?


    Visitor Again:
    Roberts' reasoning and his reading of the precedents, some of which was manipulative, certainly goes a long way to gutting any constitutional argument the Alpine Village's German owners might have had against being forced under a public accommodations law to serve customers wearing Swastika emblems.
    First, (unlike Alpine Village or Dale) this was not a mandate, but a condition of receiving federal funds. (Yes, it's true that Roberts argued that a mandate would also have been constitutional, but that's because of Congress's special, extraordinary powers with regard to the military.) Second, as I noted just above, that "constitutional argument" was "gutted" a long time ago. Bob Jones summarily rejected it, and of course you have the Jaycees and the New York State Club Association and the Rotary Club cases.

    The ship that is the principle of private property being private sailed a long time ago.
    3.8.2006 6:48am
    Kovarsky (mail):
    David,

    Minor error, I think. The dale stuff is expressive association. The first two parts of FAIR are speech and expressive conduct analyses. In these contexts the court uses the "military is important" rationale. In the expressive association analysis, the Court just says that this isn't expressive association. The quite conspicuously ommitted the compelling interest reasoning.
    3.8.2006 7:18am
    TC (mail):

    Have conservatives actually bought their own rhetoric about how DADT is a Congressional mandate? Even though it was the military that wanted something at least that discriminatory (they actually wanted the right to ask and make tell), and that if the military brass decided they wanted to terminate the policy it would be gone tomorrow?

    Yes, Congress could require the military to treat gays equally. But Congress can also prevent companies from polluting the environment with strict regulation - this doesn't mean people who boycott companies whose environmental policies only reach the legal minimum should be boycotting Congress instead.

    Furthermore, the military could stop enforcing DADT (such an action would be unreviewable as nobody would have standing to challenge).


    Is Justin advocating that the military intentionally implement illegal policies? All in the name of "equality?"

    What a dangerous thought.
    3.8.2006 8:32am
    Jeek:
    Opening up -- allowing gays to participate openly, with all the defiant cross-dressing and outrageous behavior that implies -- won't work. What it will accomplish is (1) a goodly number of dead and maimed queers, followed by (2) a massive witchhunt-and-fingerpointing exercise characterized by billions (with a B) spent on lawyers, investigators, and Courts Martial, ending with (3) en-masse imprisonment, punishment, and/or discharge of huge numbers of the military's most effective and valuable members.

    Ric, quite frankly I am skeptical of this. Did a similarly dramatic nightmare eventuate when the British, Australians, and Israelis lifted their ban?

    Did lifting the ban affect military effectiveness in these militaries?

    One study says no:

    Not a single one of the 104 experts interviewed believed that the Australian, Canadian, Israeli, or British decisions to lift their gay bans undermined military performance, readiness, or cohesion, led to increased difficulties in recruiting or retention, or increased the rate of HIV infection among the troops.

    In a 1985 survey of 6,500 male soldiers, the Canadian Department of National Defence found that 62 percent of male service members would refuse to share showers, undress, or sleep in the same room as a gay soldier, and that 45 percent would refuse to work with gays. A 1996 survey of 13,500 British service members reported that more than two-thirds of male respondents would not willingly serve in the military if gays and lesbians were allowed to serve. Yet when Canada and Britain subsequently lifted their gay bans, these dire predictions were not confirmed.

    In Australia, Commodore R. W. Gates, whose rank is equivalent to a one-star admiral, remarked that the lifting of the ban was "an absolute non-event."7 Professor Hugh Smith, a leading academic expert on homosexuality in the Australian military, observed that when the government ordered the military to lift the ban, some officers said, "Over my dead body; if this happens I'll resign." However, Smith said that there were no such departures and that the change was accepted in "true military tradition."8 Bronwen Grey, an official in the Australian Defence Ministry, reported, "There was no increase in complaints about gay people or by gay people. There was no known increase in fights, on a ship, or in Army units. . . . The recruitment figures didn't alter."


    Did lifting the ban lead to a lot of gay bashing? Again, no.

    While none of the four militaries studied attempts to force its service members to accept homosexuality, all four insist that soldiers refrain from abuse and harassment. In each case, the emphasis on conduct and equal standards seems to work. In Australia, for example, 25 out of 1,642 phone calls (1.52 percent) received on the Defence Ministry's sexual harassment otline between 1997 and 2000 involved homosexuality. In Canada, none of the 905 cases of sexual harassment that occurred in the three years after the ban was lifted involved "gay-bashing" or the sexual orientation of one of the victims. In Israel, the 35 experts, soldiers, and officers we interviewed were able to recall only a handful of cases involving harassment based on sexual orientation after the lifting of the gay ban. In Britain, no military officials who were interviewed could think of a single case of gay-bashing or assault related to sexual orientation.


    As the author of this article concludes, the notion that the gay ban is based on military necessity is weak to non-existent.
    3.8.2006 8:35am
    Visitor Again:
    I don't see how anyone can read this opinion and thinkk it can be confined to equal access for military recruiting. The Court did hold that Congress had the piower to require equal access under the constitutional power to raise armies, but that was barely noteworthy and hardly an issue in the case.

    The opinion's views on the private property owner's speech, expressive associational and other expressive rights, on the other hand, apply wherever government has the constitutional power to require equal access, whether in the special military recruiting law or under the much more general public accommodations laws. True, bare property rights are no justification for barring access or service, but surely more than property rights is at stake when a Nazi sporting Swastakas prances into a private restaurant. Roberts' opinion leaves some room for an argument that the owner's refusal of service in such a case is constitutionally protected, but not much.
    3.8.2006 8:39am
    Smithy (mail) (www):
    doing the postmodernity

    I believe the word is postmodernism. And it died on 911.
    3.8.2006 8:42am
    dk35 (mail):
    Two Quick points:

    Visitor again: I am in agreement with you overall on this, but I think you made a slight error when you stated that the Court has granted the military "equal access" to private property. In fact, the access is not equal. The Law Schools do not grant access to any other employers who disciminate against gay people in hiring. Thus, by compelling the law schools to allow the military recruiters, they are giving the government special access, not equal access.

    GMUSL 2L: here's how I would distinguish this from the "well, if the military can draft people, why can't they force themselves on private university property" argument. As far as I understand it, when the government drafted people into service, they ran this program with public resources. When the government has felt the need to commandeer private resources (e.g. food rationing), I would assume that there was some valid argument presented that this was necessary for the war effort. The problem here is that government has not shown how commandeering private property for the recruitment of JAG is necessary to the war effort. When the leaders of FAIR spoke at our campus, they pointed out the the military in the lower courts did not present any studies showing that recruiting on campus was necessary (as opposed to, say, meeting interested students just off of campus, or some other method). When pressed in the circuit and Supreme Court, they tried to come up with studies, but had to revise down their figures of the number of recruiters who actually felt it made any difference whether the recruitment went on on campus or not. So, without any strong evidence that recruiting inside the buildings of private law schools for JAG is really necessary, I think some would question why the Court was so quick to condone physical government intrusion onto private property.
    3.8.2006 9:42am
    Mikeyes (mail):
    I am going to preface my remarks by saying that a) I am retired from the military (as a COL) and was active when the DADT policy was enacted and worked out and b) DADT is a bad policy, there should be no discrimination at all in the services as any Goldwater fan knows.

    That being said, the "military", by which I assume is meant the senior officers in the military since few of the junior officers make policy, is very good at getting their point of view across (although it didn't make much of an impression on the current SecDef when war planning and after war planning was going on) and using the rules to continue a status quo. But even if the senior officers dragged their feet, they are subject to both the Congress and the CIC/POTUS and if told to "jump" they have to ask, "How high?"

    If the law schools really want to change the policy, then they only have to look to the Constitution to see that the President can change the policy by fiat and that not only does Congress have the ability to write laws determining the military hiring practices, but they have the power to determine who reaches the level of "senior officer" through the Article I, Section 8 appointment of militia clause and The Article II, section 2 consent to Presidential appointments clause. Between the President and Congress any service member who opposed such a change could be relieved of his or her office or at least not promoted.

    So, it does not make sense to try and change the law by killing the messenger. I admit it does make sense to make a political point by protesting the JAG recruiters and as far as I can see, the law allows that. It may hearten some and annoy others, but that is one of the benefits of free speech (hence the Breyer remark.) But it may not be the best or most influential way to change that policy. (It is the easiest, however.)

    In a practical sense, it has never been a good policy to go on witch hunts for gays in the military. When I was active as physician in the military, I noted that if the rules were ever kept, there would be no Medical Corps available because the attrition would have rendered that part of the service unworkable. Like racial segregation, anti-gay sentiments were reflective of the society at large, but unlike that society, things can change by the stroke of a pen. The trick is to convince the pen-strokers that such a change is worth it.

    If Congress or the President had the political cojones to make the change, the military would not turn to slush as some predict. The exact same predictions were made about integrated units. Barry Goldwater wrote This Letter to the Washington Post indicating his opinion that "After more than 50 years in the military and politics, I am still amazed to see how upset people can get over nothing. Lifting the ban on gays in the military isn't exactly nothing, but it's pretty damned close ." He even quotes Dick Cheney as calling the policy "an old chestnut."

    It is time to make the change and the law schools are not helping the process by looking anti-military. Lobbying the power is the traditional way to change laws, protest can set that up, but most of that work has been done. Polls show that most Americans are either neutral or willing to let this issue be resolved, especially amongst younger people who comprise most of the armed services and whose attitudes are being used as the excuse to not implement such a change.

    A good commander would be able to make a policy of non-discrimination work, if not, he or she should/would lose the job and there will be plenty of others willing to make it work because it is only fair.
    3.8.2006 10:29am
    dk35 (mail):

    It is time to make the change and the law schools are not helping the process by looking anti-military. Lobbying the power is the traditional way to change laws, protest can set that up, but most of that work has been done.



    Mikeyes: As a gay law student, I obviously consider you one of the good guys, so I preface this by saying that I don't mean this as a fundamental criticism. In fact, I think that it's the statements of people in your position that will ultimately be the most important factor in bringing an end to this rather silly and unfair policy. However, at the same time, I would urge you to cut the law schools a little slack.

    Perhaps you don't believe this, but there is a pretty large gay-rights lobbying network these days, and they are working hard to get Congress to change the law. There is, in fact, a bill pending in Congress to change the policy. However, that bill is stuck in committee. Why? Because the cold hard political reality is that the Republican party is control of all branches of government, and the Republican party is currently controlled by their religious right wing. Until that changes (either by change of power to the Democrats, or by the willingness of Republican leaders to stand up to their own religious right wing and do what is fair), the political reality is that the current policy is not going anywhere.

    While all this is going on, however, the law schools have a problem. They charge the same (high) tuition to both their gay and straight students, yet Congress has now created a situation whereby they are forced to offer their straight students more recruiting options on campus than they do their gay students. So, what do they do? Sure, "looking" anti-military especially in these times isn't the optimal thing, but on the other hand, the law schools have a responsibility to all of their students to offer the same services for the same price. Also, they need to worry about their own recruitment of students, and if they give off the impression that they won't do all they can within the law (including speaking out) to offer equal services to gay and straight students, they risk losing the best and brightest students who consider a commitment to fairness as an important quality for a law school.
    3.8.2006 11:38am
    Leland:
    If dissenters want to bring up private property rights, why argue the 1st Amendment? Wouldn't the 3rd Amendment be a better argument? Regardless, private property rights were not argued in this case. FAIR argued their free speech was being violated, not property.

    DK35: Non sequitur, you're arguments against the Bush Administration is akin to claiming the Clinton Administration caused 9/11 by granting the terrorist student visas. Your point may hold water if the Bush Administration, like Yale, actively recruited Hashemi to accept a Student Visa for fear that Hashemi might take residence elsewhere. You'd do better attacking my argument by pointing out that Yale does not ban military personnel from attending classes at the University.
    3.8.2006 12:12pm
    Kovarsky (mail):
    Smithy,

    doing the postmodernity

    I believe the word is postmodernism. And it died on 911.


    That comment, up until the 9/11 part, is funny on a number of levels I'm guessing that you don't understand.

    And I'm not interested in your answe r because you might be right, but more as an exercise in anthropology, but exactly what do you think died on 9/11, why do you think that particular thing that you call postmodernity died then. Why don't you give us your short definition of the term, becuase as the vast majority of us who are familiar with the terms usage think - apparently incorrectly - it is an amorphous concept that crosses across disciplines, and denies the "it" quality of anything observed without first identifying and accountifying the entity doing the observing.

    I'm guessing that you have the term mixed up with relativism or liberalism.
    3.8.2006 12:17pm
    dk35 (mail):
    Leland,

    I didn't bring up that counterargument (Yale does not ban military personnel from attending classes) because it was so obvious I didn't think that I needed to raise it.

    What bothered me more about your post was its reptition of the right-wing talking point attempt to imply that "liberal" Yale is somehow aiding and abetting the Taliban by letting this guy attend classes. I mean, if this guy is a war criminal, or complicit to the worst abuses of the Taliban in such a way that it offends American society, then I agree that Yale should not admit him. But, right-wingers can't have it both ways. If the guy is so bad that you don't think an American university should admit him, then why should the Bush administration give the guy a student visa?
    3.8.2006 12:30pm
    Mikeyes (mail):
    dk35,

    In one sense this whole business is a tempest in a teapot (to coin a phrase) since few law school graduates go into the active military due to debt incurred by school and lack of an incentive. Most military physicians are there because they had their medical school tuition paid for by a military scholarship or they went to the Uniformed Services Medical School and owe Uncle Sam a lot of payback time. You didn't see medical schools protesting the military recruiting on campus because they had way too much to lose as a result. (As an aside, my son, who just finished med school, never saw a recruiter on campus. He got a post card once and it was delivered to me by mistake since we have the same name.) No body forces lawyers to become soldiers but I bet if there was a military scholarship to law school, the best schools would not be as vocal in protest - that's a lot of guaranteed money.

    Apparently the military doesn't need lawyers as much as it needs physicians. And that makes sense because a lawyer is not going to preserve the fighting force in a battle situation nor act as a force multiplier in battle. Lawyers serve a vital part in the armed forces - you are looking at a subculture of aprox. 4 million persons who have legal issues at some time plus the laws of war, courts martial, and interpretations. It's not all flying airplanes and saving the country from Al Quaida (a reference to the show "JAG".)

    My beef with the law schools is that there are efforts to change this policy (you mentioned them) and that instead of "protesting", which is more of a narcissitic exercise, they ought to take the harder higher road and push for policy change at the source. While it is repellent to some students (such as you, and me too)that this policy exists, there are also fair and legitimate reasons for the military to recruit (not to mention several legal reasons.) Not allowing the military to recruit on campus accomplishes little other than feeling good about it. (Allowing them to recruit accomplishes little from their standpoint since it is not a fruitful effort according to everything I have heard.) But if the entity is on campus then your ability to make your point of view is enhanced and that could draw the attention of the powers that be through the usual channels of publicity and the Media. It is the American Way. ;~)

    I consider myself a classic conservative in many respects and I will quote the 1987 letter from Barry Goldwater:

    "The conservative movement, to which I subscribe, has as one of its basic tenets the belief that government should stay out of people's private lives. Government governs best when it governs least - and stays out of the impossible task of legislating morality. But legislating someone's version of morality is exactly what we do by perpetuating discrimination against gays."
    3.8.2006 1:37pm
    DonR:
    As a military commander, I am finding the "Don't ask/Don't tell" discussion fascinating. It would appear from reading these comments there is quite a bit of misunderstanding of the current law and the DOD's implementation of that law through DA/DT.

    First, the military does not currently view sexual orientation as a bar to military service, only certain behaviors which, for the purpose of this discussion, are probably not relevant. Congress is specifically authorized to establish rules of conduct for the armed forces. The Uniform Code of Military Justice deals with all sorts of behavior, to include sexual behavior. Behaviors which a civilian employer may not seem to be a big deal can disqualify a military member for further service. Some examples include writing bad checks, adultery, repeated infections of "social diseases," and being disrespectful to the President. The merits of these restrictions are certainly open to debate by reasonable people, but restricting behaviors is certainly within congressional powers as listed in the Constitution.

    As an aside, DOD has no restrictions on hiring homosexuals for civilian positions.

    Prior to "don't ask/don't tell," service members were required to sign a statement saying they were not homosexuals before entering military service. DA/DT did away with this requirement, but as the UCMJ did not change regarding homosexual behavior, those restrictions remained in place.

    Comparing allowing open homosexuals to serve with allowing blacks and other minorities to serve misses the point. As I mentioned previously, orientation is currently not a bar to service, but conduct is. Certain stereotypes aside, there is no "black," "white," or "Asian" behavior.

    In the real world, military commanders must make judgments regarding those people we know or suspect to be living outside the bounds of the UCMJ. Admittedly my sample size is limited, but I know of no commander who would go out of his way to initiate discharge proceedings for homosexual conduct for a unit member who is performing well. However, if someone does something to bring his lifestyle to my official attention, I am required to conform with current law. My personal opinions about the particular conduct are irrelevant - I must uphold the law.

    Finally, it is my opinion the whole kerfuffle between certain institutions of higher learning and military recruiters has its roots in anti-military feelings of those who influence policy at those institutions. The military has become overwhelmingly conservative since the implementation of the all-volunteer armed forces as those of more liberal political views have chosen not to serve. I'm somewhat amused people seemed surprised the military leadership supports more conservative social thinking.

    By the way, calling people on the other side of your ideological fence "bigots," "homophobes," or "racists" is not an effective way to advance your case.

    DonR
    3.8.2006 1:57pm
    Mikeyes (mail):
    DonR,

    I happen to agree with you wholly, probably because we are the product of the same system, and this is the prevailing attitude of most leaders in the military. It is not a bad one, either. If Congress changed the rules, then the leaders would, for the most part, enforce them (the rest would retire or leave.)

    Political holdings are not part of military leadership. They may color what a leader does in some way, but for the most part the rules, ethhic, policy and procedures are very well delineated and all leaders are taught to conform to them. In order to reach the COL level (or senior enlisted, for that matter) a series of schools has to be taken and passed. These are not closed minded brainwashings, rather they are usually taught in an atmosphere of discussion and development based on case studies. While there are some didactic classes, most of mine were challenging and satisfactory even when I thought they would be the opposite.

    Like DonR, I believe that there is a prevailing and simplistic view of the military as functional retards who only follow orders among a lot of intellectuals, most of whom have not served. Part of this is due to the demise of the draft (I am a product of the draft, by the way) and a sequestering of the military on the part of both the academy and the government. The notion that being in the military is a public service seems to be lost in the shuffle of defensive recriminations.

    Since I am no longer attached to the military, I can freely state my position on gays in the military. I think I am right, others disagree, but if the Congress or the President agreed with Senator Goldwater, my side would prevail in this issue. And commanders would work with the new rules.

    So my constant message seems to be: If you don't like it, change it by talking with the powers that be. I learned a little in this discussion (the bill mentioned above, for one) and will work in that direction.
    3.8.2006 3:03pm
    dk35 (mail):
    DonR,

    I have a question for you. Say a soldier were to walk into the office of his superior officer and simply state "I am gay." What would be the officer's, and the military's, duty at that point? I assume there would have to be some kind of investigation, but if I'm wrong about that please correct me. But, assuming there would have to be an investigation, and that investigation resulted in no evidence of any specific conduct (i.e. gay sexual activity), but still resulted in a credibility determination that the soldier was telling the truth when he stated he was gay, what would happen next?

    If the answer is that the soldier would be discharged, I don't see how you can say that the military does not consider homosexuality a bar to military service. Or am I missing something?
    3.8.2006 3:42pm
    Mikeyes (mail):
    dk35,

    It is not the "military" considering homosexuality as a bar, but the rules that the military follow. Granted there are plenty of members (the official term, no pun intended) who harbor anti-gay feelings, but they are just as liable to follow the rules as those who disagree with them. The law and rules are the result of two cowardly presidents and various legislators. It will eventually have to change, especially if a draft is re-instated.

    I'll let DonR explain the rules he has to follow and how much leeway he has.
    3.8.2006 4:06pm
    dk35 (mail):
    Mikeyes,

    Once again I very much appreciate your comments, and do not disagree that the act of "protesting" often carries with it a narcissistic quality. However, I do contend that you have to look at the Law School's actions as more than simply a protest. Law schools wish to provide equal opportunity on their own property to all of its students, and Congress has now made this impossible.

    The schools then have a choice. They could simply tell their students "Well, sorry, we're writing our Congressmen, there's nothing else to do." Or, as many have done, they can also publicly condemn Congress' decision, make it very clear when the recruiters come to campus that the school does not support the discriminatory hiring policy, explore all legal avenues (yes, even court challenges), and take other measures to make certain that tuition paying gay students are not getting less for their money than tuition paying straight students get. Even if the latter is to some degree "feel good" and self-serving, that doesn't mean it isn't also the morally preferable choice.

    Finally, I did link to the bill currently pending in Congress earlier in this thread, but I'll do it again here. It's the Military Readiness Enhancement Act, and it's sponsored by Rep. Marty Meehan (D-MA).
    3.8.2006 4:20pm
    Anonymous Reader:
    dk35,

    I'm currently in the military (nonlawyer but an officer) and I have personally dealt with some of these issues. If someone were to come to me stating that he/she was gay, I would launch an investigation into the allegation. Throughout the entire investigation, no one can ask that person if they were homosexual or not. As DonR stated, the military doesn't care if you're homosexual or not. We only care if you have or plan to engage in homosexual conduct that would interfere with your duties as a serviceman/woman. It's kind of like asking someone if they plan on breaking the law. Like I said, "kind of like."
    So, in your hypothetical, if the investigation resulted in no evidence of conduct, the person would be retained and would continue their military service.
    The important point I would like to make is that no one conducts witch hunts looking for homosexuals or for any other kind of misconduct for that matter. The rules and laws regarding search and seizure exists even in the military, to include those living in the barracks to a certain degree. So basically, the only time an allegation of homosexual conduct would come up would be if the person is physically "caught in the act" or if they allegate themselves.
    As an aside, a servicemember can participate in gay parades, go to gay bars, etc. as long as they are not doing so as a representative of the military (such as wearing their uniform or giving speeches using the fact that they are in the military as some sort of platform). I believe that there's also a regulation stating that we are not allowed to wear our uniforms at politcal rallies and such.

    Mikeyes,
    And YES, the military does need lawyers. Just about every major unit that deploys (even to such operations as tsunami relief) has a JAG that would train and provide legal advice to the commander on the laws of war and the rules of engagement. Also, there ARE programs in place in the military that will pay for you to attend law school. It's probably that the JAG corps are a smaller field than the medical corps so you don't "hear" about it as much.

    Anonymous Reader
    3.8.2006 4:23pm
    dk35 (mail):
    Mikeyes,

    I apologize if I was imprecise in my language. I do appreciate your point that the military is bound by rules which are ultimately approved by Congress. I didn't mean to imply otherwise.

    The issue I was trying to clarify with Don R. had to do with the fact that he seemed to imply that one can't be barred from service by self-identifying as having a gay sexual orientation, but only because of actual gay sexual conduct. I was not under that impression, but if Don R. is right on this I would definitely like to be educated.
    3.8.2006 4:29pm
    dk35 (mail):

    We only care if you have or plan to engage in homosexual conduct that would interfere with your duties as a serviceman/woman.



    Thanks for the comment, Anonymous Reader. I'm finding this interesting.

    So, I guess my next quesiton would therefore be what is the definition of "homosexual conduct that would interfere with your duties as a serviceman/woman?" Does that include all homosexual conduct? If not, could you give an example of what kind of homosexual conduct you think would be permissible in the sense of not forcing the person out of the service?
    3.8.2006 4:37pm
    DonR:
    dk35

    The statement "I am gay" happens to be one the behaviors specifically used in our homosexual policy training as an example of what constitutes a violation of the "don't tell" part of the DA/DT policy. Assuming he made this comment to me, a commander, I have no ethical choice as a commander but to start discharge proceedings. I should add, unless there is some sort of misconduct such as financial irresponsibility that is included as part of the discharge package, the member's service would be deemed "honorable" and the discharge would be processed accordingly. There would be no investigation, as I must assume he was telling me the truth.

    Some of the other triggers would be an attempt to marry another person of the same sex and actual or attempted sexual acts with another member of the same sex.

    If the member had second thoughts about making that statement, he now bears the burden of proof to show otherwise. Any discharge package I initiate, for whatever reason, is reviewed by my commander and the local JAG. With homosexual conduct discharges, the discharge package undergoes yet another JA review at higher headquarters, and then goes before a discharge board, which may over rule my discharge request.

    At no time would any investigative arm of the service pry into the intimate details of a member's life solely with the purpose of determining sexual orientation or conduct unless it was part of and relevant to a criminal investigation. So-called witch hunts are specifically forbidden and any commander who ordered or participated in one would most likely be relieved and suffer other disciplinary actions. An example where a member's sexual orientation would be relevant under DA/DT would be an attempted or actual sexual assault.

    I would like to restate sexual orientation is not a bar to service, but homosexual activity is not compatible with military service (DOD policy). The statement "I am gay" is considered homosexual conduct.

    Sorry to be long-winded, but this is obviously a complex issue in the current environment.

    DonR
    3.8.2006 4:49pm
    Anonymous Reader:
    dk35,

    Well, maybe I was a little confusing, but what I meant was that homosexual conduct, in and of itself, WOULD interfere with your duties. But just being a homosexual would not. Does that make sense? Now just going off the top of my head, just because you're gay doesn't mean you're automatically separated UNLESS you plan or are conducting misconduct. Of course, there are for the good of the service caveats and whatnot. Such as if you're serving honorably and you don't plan on misconduct, then it's a nonissue. But like I said, the only times it comes up is when the person brings it up or they are "caught".
    But I'll tell you this, no one I know stays awake at night wondering if so and so is gay or whatever. We do our jobs as we're ordered.
    In regards to bigotry, homophobia, etc... well, the military is just a reflection of society. To say that any form of bigotry is more prominent in the military than in any other segment of society is naive and disengenous.
    If our national leaders were to abolish "Don't Ask, Don't Tell" today... we would be bound to follow such orders and would do so honorably. GENERALLY speaking, and I stress "generally", the people most wrapped around the axle on this issue don't like the military to begin with and they hang their "anti-military" hat on this topic. I don't speak for everyone in the military, but there are a lot of servicemen and women who don't necessarily agree or care about DA/DT but are bound by the UCMJ to follow all laws, rules, and regulations.

    Anonymous Reader
    3.8.2006 4:54pm
    Leland:
    DK35:

    What bothered me more about your post was its reptition of the right-wing talking point attempt to imply that "liberal" Yale is somehow aiding and abetting the Taliban by letting this guy attend classes.


    The implication is all yours. You have no comprehension of what I previously wrote.
    3.8.2006 5:16pm
    dk35 (mail):
    Well, it seems as if DonR and Anonymous Reader have differing views on what happens if a serviceman/woman simply states that he/she is gay. If I would hazard a guess, I would tend to think that DonR's analysis of the rules is correct, but that is only based on testimonials I have read written by gay ex-servicemembers who came out to their superiors and had experiences that match up with DonR's comment.

    For what it's worth, I believe DonR and Anonymous Reader that witch hunts are very rare, and certainly not part of official policy. Again, I base this on what I hear out of the community of gay ex-service members.

    I'm assuming that since anonymous reader and DonR are both currently in the service, they do not think it appropriate to give their own opinions on the policy, and I certainly respect that. For others out there, though, surely I'm not the only one who thinks that it is pretty surreal for the DoD to have a policy which states that saying the words "I am gay" is an example of homosexual conduct. Such a policy blurs the line between orientation and conduct so much that the distinction becomes meaningless.
    3.8.2006 5:22pm
    DonR:
    dk35

    I have not shared my opinions on this issue because they really don't matter. I only jumped in the discussion in an effort to clear up some apparent misunderstandings of the law, policy, and impact of DA/DT.

    I think your last comment pretty much hits the nail on the head with the dissatisfaction with DA/DT within parts of the military. If you recall, Sam Nunn resigned as SecDef over this issue, and it was quite contentious when it was implemented at the direction of President Clinton.

    I can understand the rationale of deeming the "I am gay" statement as an example of homosexual conduct in the context of the DA/DT policy. Attempted same sex marriage falls into the same category, even if there is no attempt to engage in sexual relations. If I had a sense of humor and at the risk of offending some on the forum, I might be tempted to say running a floral shop could also be considered "gay" behavior, but I would bet our local JAG officer would not find that a compelling reason for discharge.

    As I said before, reasonable people can debate the merits of this and other policies in the military. Part of the frustration within the various levels of military leadership is with people who obviously disdain the military and ordinarily would have nothing to do with us in daily life feel compelled to try to dictate how we should run our house. Our norms and standards of conduct are not secret; we all know what is expected before we sign up or learn during our initial training. We have to deal with current law and policy.
    3.8.2006 7:53pm
    Kovarsky (mail):
    I have a feeling that the DoD thinks not watching the Super Bowl is homosexual conduct.
    3.8.2006 7:53pm
    Anonymous Reader:
    DonR is correct about the statment "I am gay" in reference to it being deemed homosexual conduct. Although this is anecdotal, let me give you a personal example. I had a servicemember tell me that one of his troops stated to him that he was homosexual. The servicemember who brought it to my attention stated that he had given the other member a day to think about the implications of what he was saying before he would bring it up the chain of command. After the 24 hours, the member still wanted to stick to his story so an investigation was conducted to ensure it wasn't a "get out of the service" claim and after conducting the investigation, the servicemember stated that he would continue homosexual conduct and was therefore separated.

    That is just one example of how this situation was handled. So I would ask that those who think the military is full of a bunch of southeren boys who are bigoted, racist, and sexist to think again. There are a lot of good people in the military, from all walks of life. It really frustrates me when some people, out of simplicities sake, paint everyone with a broad brush and generalize the actions of otherwise honorable men and women. I'm not saying that everyone here commenting is making that statement (I guess I'm painting with a broad brush too), I'm just making the statment.

    Anonymous Reader
    3.8.2006 9:50pm
    Jeek:
    I think your last comment pretty much hits the nail on the head with the dissatisfaction with DA/DT within parts of the military. If you recall,Sam Nunn resigned as SecDef over this issue,

    Nunn was never SecDef. Far from being dissatisfied with DADT, Nunn was, though not the actual author of this "compromise", a vigorous proponent of it.
    3.8.2006 10:59pm
    dk35 (mail):
    My memory of Nunn's involvement in all of this is the same as Jeek's. Instead of supporting Clinton's instinct to do the right thing, Nunn teamed up with Colin Powell to make it too politically costly for Clinton to go ahead with removing the ban entirely. It showed, unfortunately, the political weakness of Clinton, and the moral weakness of Nunn and Powell. I'm hoping maybe that at least some higher ranking officials in the military have more moral fortitutude now than Powell did then on this issue, because when some President or influential Congressman tries to lift the ban again, the political reality is that he must be able to turn to the military and find a "can do" attitude, as opposed to Powell's "can't do" attitude.

    I also agree with Anonymous Reader's frustration with those who think the military is full of a bunch of southern boys who are bigoted, racist, and sexist. The irony, of course, is that it is often exactly those who wish to KEEP the ban on gays in the military who argue that most strongly. In other words, the irony is that those who typically fall into the category of political conservatives, and all too often like to unfairly paint people on the left as "anti-military," defend the ban on gays in the military on the grounds that the typical soldier would be unable to restrain themselves from committing violent acts against other soldiers who happen to be gay. For an example of this, see the comment of Ric Locke above (3/7/06; 8:33 pm).

    Personally, I am a gay left-winger who has enough faith in our military to think that they could handle a change in policy allowing for the service of openly gay men and women. I base this on the facts that we have the best trained, most efficient military in the world, that other countries similar to ours have done it without any problem, and that the majority of young people in this country in poll after poll indicate a belief that our society should treat gay people equally with everyone else. If young people in America in general believe this, I see no reason why there would be any appreciable difference among young people in the military. And for those in the military who still feel uncomfortable around gay people...well, they are soldiers and would just have to deal with the change in policy.

    And as for recruiting on law schools: I can understand why some in the military have a built-in distrust of the motives of anyone at a university. On this issue, though, I really don't think that most people at universities are using this issue as a front for anti-military feelings. On the contrary...I think that many law students understand that a career in the military is a great opportunity for some, and only wish that all law students, not just the straight ones, could be eligible.
    3.8.2006 11:40pm
    Mikeyes (mail):
    dk35,

    A career in the military means giving up certain privileges and rights that most people take for granted. Military life is quite unfair in some respects but perhaps the fairest employment in this country in others since the rules are very clear and you are fully apprised as to what they are and what the consequenses are.

    But some of the rules are arbitrary to my mind such as the DADT one. On the other hand, the rules that seem like they limit your rights, such as the rule that you cannot criticize the CIC in a public forum or those that don't allow you to have anywhere near as much privacy as you would in civilian life (for instance, you are subject to beig ordered to take a physical or mental exam and those results can go to your commander) are there for the purpose of keeping the force ready to fight. In addition the contract you sign to be a member of the volunteer force does not allow you to change your mind at the last second because you suddenly became a pacifist in time of war. You can be sent anywhere you are needed, etc. even if you don't or can't go. These are not the usual contract conditions seen in civilian life.

    So most people are not suited for a career in the military under those circumstances. If a draft were to be re-instated (and in some senses, the use of NG and Reserve forces as regular troops for long periods of time is like a draft)some of the more chicken-shit rules are put in abayence because the military ceases to be "all-volunteer" at that time. But right now you should know what the deal is before you go in because at least they are up front about it.

    To get your wish, the rules have to change and you know who has to change them.

    BTW, I respectfully disagree about the academy's apparent attitude towards the military. While I know a few professors who have no opinion or even favorable opinions of the military (mostly science professors), my anecdotal experience with my son's Ivy League profs was quite different. I almost showed up in uniform at graduation just to tweak them I was so angry. But, as sort of a scientist, I have to admit that this is not proof of an wide spread attitude.
    3.9.2006 3:21pm
    dk35 (mail):
    Mikeyes,

    Yes, I do know how the rules have to be changed, and hope that Congress gets a backbone at some point. Also, of course, I hope that now there are enough military leaders who share your attitude about the policy, so that there wouldn't be the kind of pushback to the change among the top ranks of the military that there was back when Clinton tried to change things.

    Regarding realtions between the military and academia..well, I'm sure you know how these things go. The more conversation between the two sides, the more that each side can understand that the other side is not made up of stereotypes, but rather of human beings, many of whom just want to do the right thing. In some ways, it makes me think that the many European countries that require a year of military/social service have the right idea. I would imagine it helps create a more politically/socially diverse military on the one hand, as well as give civilians a better appreciation of just what the military is all about.
    3.9.2006 4:43pm