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Balkin on Solomon:

Jack Balkin has an illuminating post on the Solomon Amendment decision, Rumsfeld v. FAIR.

Balkin explains why he was a "reluctant" supporter of the litigation against the Solomon Amendment:

...I believed that, if successful, these lawsuits might cause problems for other areas of antidiscrimination law, in particular, in the area of Title VI and Title IX law. The reason is that Title VI and Title IX impose antidiscrimination obligations on schools that receive federal funds. If the FAIR and Yale plaintiffs had first amendment rights to be excused from the Solomon Amendment, racist and sexist institutions might claim that they were entitled to be excused from Title VI and Title IX obligations. There are ways to distinguish the two situations, but it requires some fairly fancy footwork and it might cause even more problems down the road. Therefore, when I joined the Yale suit as a platinff, my preference was for a much narrower theory of the case, one that would pose no danger of undermining federal antidiscrimination laws.

I think this helps explain why FAIR lost, and lost so badly, in the Supreme Court. There was simply no constituency on the Court, and precious little constituency off the Court, for the sorts of broad speech and associational rights being pressed by the litigants in the context in which they pressed it. Aside from the interesting doctrinal issues raised, neither conservatives nor liberals liked the claims. Conservatives defer to the perceived needs of the military and to Congress's "judgment" about those needs, even though that judgment was largely a fiction in this case. (There was no evidence that the military needed access to law school buildings in order to recruit a sufficient number or quality of law students to provide legal services. Even the Defense Department initially opposed the Solomon Amendment as unnecessary and counterproductive.)

Liberals were never enthusiastic about the broad associational rights announced in Boy Scouts v. Dale, which was decided by the narrowest margin (5-4), because they worried about its effects on federal and state antidiscrimination laws. Balkin, correctly in my view, reads Chief Justice Roberts' opinion to confine the associational freedom protected in Dale largely to membership issues. But whereas Balkin celebrates that limitation of associational freedom, I think it is unduly narrow, both as a matter of the Court's associational freedom precedents and as a matter of principle.

In short, for conservatives, Rumsfeld v. FAIR was a chance to reassert Congress's traditional power over national defense; for liberals, the case was a chance to narrow the reach of Dale and implicitly to reassert government's power to enforce antidiscrimination regulations. If neither conservatives nor liberals support your case, you have no case.

Also worth reading in Balkin's post is this insight regarding the Court's suggestion that law schools are now perfectly free to post notices, etc., announcing that military recruiters are not welcome:

If a school (and its faculty) were repeatedly to send the message that its black students were not welcome, even though the school did nothing else to prevent the students from attending the school, I have little doubt that the school would have violated Title VI of the 1964 Civil Rights Act. Similarly, if a restaurant had signs at its entrance saying "blacks go home" and "we resent serving blacks" and placed those signs deliberately in order to make blacks feel unwelcome, but did not refuse service to those blacks who came inside, the owners of the restaurant would probably be in violation of Title II. In other antidiscrimination laws, equal access isn't simply a requirement of no formal limits on physical access. Equal access usually means that you aren't allowed to send signals that the group is disfavored and unwelcome so as to discourage the group from entering and using the facility.

As a matter of statutory construction, the distinction between the Solomon Amendment and Titles II, VI, and VII may be that the former is solely an "equal access" requirement (e.g. "you must simply let us in, if you let in others") whereas the latter statutes are broader, generalized "equal treatment" commands (e.g., "you must not simply let us in, but treat us with the same dignity and respect as you give others"). But Balkin's argument does suggest that courts may be put in a bind in a future case where a law school pushes the envelope in its efforts to make military recruiters unwelcome. At some point, presumably, a federal court might decide that "unwelcome mats" for the military effectively deny its recruiters equal access.

A related issue Balkin touches on: The Court's opinion suggests that the law schools' freedom to protest on-campus military recruitment (e.g., through "unwelcome" signs and forums) is a matter of legislative grace, not necessarily constitutional law. A future Congress might decide, in response to pesky academics, to adopt a true anti-discrimination requirement for military recruitment, one that mandates not simply equal "access" but substantive equality of treatment. Would the Court hold that these protest rights are protected by the First Amendment? In that event, the Court would have to explain government's power to prohibit other associations from doing the same in, say, Title VII. Or would the Court back off and say that expressive associations, like businesses, may be required not simply to admit those they disdain, but to keep silent about their objections? In that event, the damage done to First Amendment values by this litigation will have been magnified.

UPDATE: Marty Lederman has an interesting reaction to Balkin's post and to the Solomon Amendment decision. Professor Lederman makes the very useful point that (as now construed by the Court) there's a real sense in which the Solomon Amendment requires preferred, not equal, treatment of military recruiters. They, and they alone, are exempt from law schools' general requirement that prospective employers not discriminate against gay law students.

I have to say, however, that I found the statutory argument -- that excluding military recruiters on grounds of violating a generally applicable antidiscrimination policy would comply with the Solomon Amendment -- a bit strained. It seems to me that Congress's requirement of access for military recruiters equal to that given other employers, fairly read in context and in light of its obvious purpose, was really a requirement of "compelled access" for military recruiters if other recruiters were allowed on campus. The statutory issue isn't without doubt, and is more complicated than I'm presenting it here, but on this point I think the Court probably got it right.

M. Lederman (mail):
Dale: I agree that the Court's holding on the right of schools to condemn the military and to protest military recruiters was statutory, not constitutional. See my post on SCOTUSblog here.

One small thing: You write that "a future Congress might decide, in response to pesky academics, to adopt a true anti-discrimination requirement for military recruitment, one that mandates not simply equal "access" but substantive equality of treatment."

If only. In that case, the schools would be able to exclude the military for failure to abide by the recruiting conditions that apply to all other employers, including the condition that they not discriminate against the schools' gay and lesbian students. The real benefit of the Harvard/Columbia statutory argument was that it prompted the Court to explain clearly that the Solomon Amendment does not require schools to afford the military equal treatment; instead, it requires schools to give the military special, preferred treatment -- namely, an exemption from the conditions that bind all other employers invited to the campus.
3.15.2006 2:04pm
Jim T:
Actually, I think the most 'illuminating' portion of that post was this:

"I believed that the constitutional theory behind both the FAIR lawsuit, which I was not involved in, and the Yale lawsuit (Burt v. Rumsfeld), which I joined as a plaintiff, was a long shot."

Pretty honest after the fact, though I personally would translate that as, "the constitutional theory ... had no legal basis". It was simply policy preference masquerading as a legal theory.

It's disappointing, though not surprising, that so few of the FAIR lawsuit proponents seem to understand this.
3.15.2006 2:34pm
Tyrone Slothrop (mail) (www):
But Balkin's argument does suggest that courts may be put in a bind in a future case where a law school pushes the envelope in its efforts to make military recruiters unwelcome. At some point, presumably, a federal court might decide that "unwelcome mats" for the military effectively deny its recruiters equal access.

Solicitor General Clement suggested at the oral argument that law schools could do an awful lot without pushing that envelope.
3.15.2006 2:46pm
Kovarsky (mail):
Dale,

This builds a little on the previous comment, but you post:

A related issue Balkin touches on: The Court's opinion suggests that the law schools' freedom to protest on-campus military recruitment (e.g., through "unwelcome" signs and forums) is a matter of legislative grace, not necessarily constitutional law. A future Congress might decide, in response to pesky academics, to adopt a true anti-discrimination requirement for military recruitment, one that mandates not simply equal "access" but substantive equality of treatment. Would the Court hold that these protest rights are protected by the First Amendment?

I don't think that the opinion creates this inference at all - in fact I think it creates the opposite inference. The Court's reasoning - whether your interpretation as "equal access" or Marty Lederman's as "equal results" - was premised on the status of this recruitment policy as "non-expressive." Signals that the court would accept an equal results requirement (forget for a moment Marty Lederman's point that they already have) only seem to apply to non-expressive conduct/association. In the situation you (Dale) present, it seems the court would not import the FAIR logic because the forums, signs, etc., would seem to constitute "inherently expressive" conduct.
3.15.2006 2:52pm
Grant Gould (mail):
If neither conservatives nor liberals support your case, you have no case.

It's hard to imagine a more succinct statement of where the politicization of the justice system has left us: Appeal to one or another political constituency, or you have no hope in a question of law.
3.15.2006 3:22pm
MR (mail):
I doubt that the worries about posting "anti-military" flyers will come to fruition for a more obvious reason - discrimination against individuals is different from discrimination against entities.

This was the exact rule pronounced by the Supreme Court in the Domino's case within the last few weeks. Thus, the argument is that you can bash the military (and any other law firm) all you want in order to dissuade them, but you cannot do the same to individuals.

It is for this same reason that I do not think that a win for the law schools would have eroded anti-discrimination policies much. It IS acceptable to discriminate against certain companies - people do it all the time - in my college days it was "No South Africa investments."
3.15.2006 3:29pm
Richard Bellamy (mail):

Conservatives defer to the perceived needs of the military and to Congress's "judgment" about those needs, even though that judgment was largely a fiction in this case. . . Liberals were never enthusiastic about the broad associational rights announced in Boy Scouts v. Dale, which was decided by the narrowest margin (5-4), because they worried about its effects on federal and state antidiscrimination laws.


Of course, this is all a little post hoc. There are both liberal and conservative reasons to support or reject either side. The vote could have just as easily gone 9-0 the other way, with conservatives recognizing that the fiction was a fiction, and liberals saying "You made your Dale bed, now lie in it."
3.15.2006 3:33pm
Cornellian (mail):
What about discrimination against military recruiters that does not affect their right of access to conduct interviews? I repeat again my example of a school that offers post-graduation debt assistence for any public employment other than military employment. Would that violate equal access on the grounds that it makes it less likely that students will be willing to interview with the military?
3.15.2006 3:40pm
Hovsep Joseph (mail) (www):
I think law students should be grateful to those (relatively few) law school faculties who took some action in defense of their gay and lesbian law students, even if FAIR's constitutional arguments were strained and ultimately unsuccessful. Now its time for law students to take over the reigns of the unwelcome wagon by using the military's inevitable presence on campus to the advantage of those opposed to anti-gay discrimination. Those law students who are offended by the military's attack on gay lawyers and law students (the overwhelming majority of law students) should take up the military's invitation to meet with military recruiters and then engage those recruiters on a one-on-one basis about their role in enforcing Don't Ask Don't Tell. This is far more effective than any signs or notices the law school faculty may post, which the recruiters simply ignore. Active discrimination against gays and lesbians should be made to feel as shameful and inappropriate as it is. I know gay and straight law students at some law schools have done this (e.g., NYU, Cornell, Yale). Now that the military is here to stay, law students should take this on as a full-fledged campaign to educate the military about the effects of its policies.
3.15.2006 3:45pm
Kovarsky (mail):
Cornellian,

What about discrimination against military recruiters that does not affect their right of access to conduct interviews? I repeat again my example of a school that offers post-graduation debt assistence for any public employment other than military employment. Would that violate equal access on the grounds that it makes it less likely that students will be willing to interview with the military?

Remember, the decision doesn't require equal access, it only says that Congress can (and did) do so without violating the first amendment. The solomon amendment applies only to military recruiting. If your question is whether the school would violate the "equal access" requirement in doing differentially treating debt, then I'm not sure where that equal access requirement would come from. The statutory question is what Solomon said; the constitutional question is whether the first amendment allowed Congress to impose that rule.

If your question is instead whether Congress would be allowed to pass a rule prohibiting that treatment of debt, the answer - according to FAIR - is almost certainly yes.

Do you mean would it violate the
3.15.2006 4:18pm
J..:
This probably isn't the right place to do this, but I just wanted to point out that every post that Dale has made so far has been incredibly well done in both tone and substance. Dale is a really good fulltime addition that I look forward to reading regularly. Bravo.
3.15.2006 4:25pm
Tim Alumb:
"Those law students who are offended by the military's attack on gay lawyers and law students (the overwhelming majority of law students) should take up the military's invitation to meet with military recruiters and then engage those recruiters on a one-on-one basis about their role in enforcing Don't Ask Don't Tell."

Yes, and then those service members could do... absolutely nothing about it, because they don't make the law.
3.15.2006 4:26pm
john dickinson (mail) (www):
I don't see why this has to be seen as a unity of pro-military conservatives and anti-Dale liberals. While this case ostensibly lends itself to such a simple gritty-realist explanation, it can also be seen as a victory for the legal idealists. That is, when there is a right answer that is well-articulated, it really is possible to put aside substantive preferences and agree on it.

For a more snarky attack on Balkin's essay, see here.
3.15.2006 4:41pm
Richard Bellamy (mail):

Yes, and then those service members could do... absolutely nothing about it, because they don't make the law.


The theory would be to fill the on-campus recruiter's time slots with law students who were not actually interested in working for that employer. On-campus recruiting generally allows X number of students to meet with the recruiter -- generally two an hour. If you fill up your 8 hour day with 16 "protesters", you can have the same effect without actually banning them.
3.15.2006 4:46pm
Hovsep Joseph (mail) (www):
Tim Alumb, You are right that military recruiters do not make the law and I've struggled with whether engaging recruiters is constructive or just mean. Even though recruiters don't make policy, they certainly enforce it and they are the ones who know how DADT works on the ground. Just as they report back to their superiors alleged unequal treatment of the military on campus, they report back the difficulty of enforcing the blacklist against openly gay law students. If the recruiters come to campus and talk to the handful of law students who are left after the law students who are either gay or offended by DADT have self-selected out of interviewing, they get an unrealistic impression of the real costs of DADT on recruiting new lawyers. Congress and the President make the law, but leaders in the military certainly have influence over these kinds of policy decisions and so I think it is constructive to make sure recruiters and their superiors know the effect of DADT.
3.15.2006 4:59pm
Adam Scales (mail):
Joseph,

I have my doubts about that. I do not think the "real costs of DADT" are significant. That is, while I am certain there are a few individuals for whom DADT marginally pushes them away from a JAG career, they are very unlikely to be the kinds of people who actively supported the FAIR lawsuit, or who are arguably re-energized for protesting now.

I have never liked protests that take advantage of our relatively open society. Do we really want a society in which free newspapers must be guarded so that those who disagree with editorial decisions do not help themselves to two hundred copies just to shut them up? The suggestion that students sign up for interview slots they do not in good faith wish to hold is deeply troubling. If it is morally correct to lie (by pretty serious omission) in a way that deprive a willing candidate of an interview slot, it must also be o.k. to lie to those candidates about the date and time of their interviews. I suppose it would be equally acceptable to follow JAG candidates around school all day, and interrupt them whenever they attempted to speak.

What if the military requires all candidates to provide a declaration, under penalty of perjury, that they sincerely, rather than pretextually, wish to interview for a JAG position? This probably would not be difficult (though, again - is this really where people want to go?) I must say, I'd be impressed with someone who would risk rejection by the Bar for perjury in the name of resistance; perhaps this is why I find it so hard to respect the vocal opponents of a policy with which I disagree: law schools are principled, until it hurts. Protests that cost OTHER people time and opportunity, without personal cost, are desirable, we are told.

I think that silent protests are highly undervalued these days. I would sooner stop to entertain the view of someone who has ASKED me for my time than one who has taken it. Given the overwhelming judicial, public, and legislative rejection of FAIR, I would urge those who feel most strongly to reassess whether their strategies are likely to succeed, or simply alienate further a public that probably agrees (or soon will) with their underlying position.
3.15.2006 5:39pm
Thorley Winston (mail) (www):
What if the military requires all candidates to provide a declaration, under penalty of perjury, that they sincerely, rather than pretextually, wish to interview for a JAG position? This probably would not be difficult (though, again - is this really where people want to go?)


I was going to suggest that anyone who sets up a phony interview with a JAG recruiter as a pretext to waste their time and/or harass them be barred from any type of federal employment but your suggestion that they be slapped down for perjury and either get rejected by the Bar or at a minimum be barred from practicing in federal court would be even better.
3.15.2006 5:56pm
Guest44 (mail):
Balkin's essay is nice except for the way he repeatedly describes the policy as "military" and refers to the military's prejudice. Nobody wearing a uniform today had anything to do with getting DADT put in place.


When I envision protesters screaming in the faces of young JAG captains interviewing here in Cambridge being seen on TV, I'm not convinced that it will sway public sentiment in the pro-gay direction. It seems more likely to do the opposite. This is just a guess, though. Perhaps even so, it would raise consciousness in a way that pleased the protesters
3.15.2006 6:22pm
Joe7 (mail):
Am I the only one that sees right through the anti-gay canard the law schools were using? This had precious little to do with gays in the military; it had everything to do with law schools attempting to prohibit military recruiters from campaus, period. The gay issue just happen to give them an excuse.
3.15.2006 6:51pm
Kovarsky (mail):
Joe7,

What evidence do you have that allows you to see the light on this one?
3.15.2006 8:12pm
Kovarsky (mail):
Guest44,

I believe that the idea was to rob the military higher ups of a source of labor supply, not to hold the first-person recruiters personally accountable.
3.15.2006 8:14pm
Mike BUSL07 (mail):
Kovarsky, there is some evidence that law school attitudes toward the military are negative for reasons that go beyond DADT. On the days that Army JAG was at BU, the school was plastered (anonymously) by fliers depicting injured Iraqi children, and abused Abu Ghraib victims.

But, yeah, there are some reasons to think that DADT is not the whole story here, and I doubt that BUSL is an exception here.




(On a side note, it was JAG that put PFC England and her colleagues in prison).
3.15.2006 8:29pm
Bruce Hayden (mail) (www):
I would think that a mere written promise made to honestly be considering a JAG career would be sufficient. The recruiters could then turn these over to the appropriate bars as indication of dishonesty should it turn out that interviews were being scheduled as protests. While this sort of thing would probably not, in the end, disqualify the applicants from being admitted to the bar, it would probably cause them more inconvenience than they caused the recruiters.

And, then, if this were a recurring thing, the JAG recruiters could just request additional interview time, as they couldn't service all the requests made for slots in the time allotted. And, indeed, asking for a good faith promise to be considering a JAG career would be easy to justify in this case, since they have an incentive to spend their time on bona fide candidates.

Of course, if this becomes a major protest, Congress can just mandate that JAG recruiters get permanent recruiting space on these campuses, and if that doesn't work, just institute an attorney draft. Of course, no one wants that, neither the military, nor those who are opposed to military service being forced into the military. But it remains a viable option.
3.15.2006 8:29pm
Bruce Hayden (mail) (www):
Kovarsky

This isn't going to work to deprive the military of their needed lawyers. As I keep pointing out, they have a whole range of alternatives - this was just one of the least intrusive. There is absolutely nothing keeping Congress from authorizing the drafting of the top 10% of every law school. (Yes, they could use a lottery, like I faced for Vietnam, but why should they settle for the weaker law grads, when they can just skim the cream?)
3.15.2006 8:34pm
TC (mail):

Now that the military is here to stay, law students should take this on as a full-fledged campaign to educate the military about the effects of its policies.



A bunch of law students are about the last ones who can teach military lawyers about the "effects" of "military policies."
3.15.2006 8:39pm
Kovarsky (mail):
Bruce,

I agree with you. I was responded to an earlier post that was suggesting that the policy was silly because the first-person recruiters didn't have anything to do with making the policy. In other words, I was responding to the point that somehow the fairness of the policy turns on the degree to which the recruiters are "personally responsible" for DADT.
3.15.2006 8:39pm
Kovarsky (mail):
Mike,

I don't doubt that education varies inversely with approval of the military. I don't think it's a phenomenon unique to law students though (as opposed to students of other academic disciplines).

I also don't know that people posterizing campus about Abu Ghraib is the best example for an inappropriate law school bias against the military.
3.15.2006 8:44pm
TC (mail):

The theory would be to fill the on-campus recruiter's time slots with law students who were not actually interested in working for that employer. On-campus recruiting generally allows X number of students to meet with the recruiter — generally two an hour. If you fill up your 8 hour day with 16 "protesters", you can have the same effect without actually banning them.

I'm not sure if it's funny or just plain sad how some people want to play games with this and interfere with the recruiting and job selection process — a process where people make major decisions that can affect the rest of their life and may be among the most important they ever make.

Imagine a JAG recruiter (usually less than 30 years old) "interviewing" someone for whom this is all a political protest, then interviewing a sincere applicant who is willing to make many sacrifices to serve their country. That's funny and yet sad at the same time.

If you truly don't like the policy, do something substantive about it and try to change the LAW. Don't delude yourself that harassing a 28 year-old Captain or Lieutenant recruiter (who has nothing to do with the DA/DT law) is going to matter.
3.15.2006 8:49pm
Robert Schwartz (mail):
"a future Congress might decide, in response to pesky academics, to adopt a true anti-discrimination requirement for military recruitment"

A future Congress might decide to take on the academy, which believes it is a counter-hegemonic fortress, with the right and the obligation to oppose not only the duly elected government but the very essence of America, and remove all federal funding from the academy, and cancel all of its tax benefits and perks, including exemptions from income taxes, deductibility of contributions, and tax exemptions for scholarships.

It wouldn't bother me one bit.
3.15.2006 9:18pm
Mike BUSL07 (mail):
It would also have the (in my opinion) desirable result of putting some really awful academic institutions, including law schools, out of business.
3.15.2006 9:21pm
Hovsep Joseph (mail) (www):
I have not suggested that any students perjure themselves, scream in recruiters' faces, waste recruiters' time, or deprive JAG of recruits by signing up for interviews with JAG recruiters.

First, understand the law school job interview system. Law schools typically invite recruiters to come during certain time periods, then invite students to rank the interviews they most want. Taking into consideration the high demand for and limited supply of interview slots, the law schools then distribute available interview among students in a way they deem fair. Law students in turn take as many interviews as they can, even if they don't at the time realistically expect to accept a job offer from any given employer (especially since there are so many employers and students can't possibly know very much about any given one employer). Then consider that JAG routinely sends a recruiter for a full day like the other employers, but whereas the other employers almost always fill every interview slot, JAG typically only finds four or five students interested in signing up for half-hour interviews.

JAG does not come to law school campuses like other legal employers because there are so many law students eager to interview. JAG is such a different career path that a limited number of students want to interview and they are certain to find a receptive recruiter if they want to interview off campus. JAG comes to law school campuses to prove a point. That is why they went to the Supreme Court to defend their right to come to campus. And that's why the First Amendment was ever involved in this dispute--because JAG came to campus and the law schools tried to keep JAG off campus to prove a point about the military's right to interview whereever it wanted and the law schools' right to protest employers' anti-gay employment policies, respectively.

So, a law student's decision to sign up for any given interview without a well-formed intent to commit to employment with that employer is certainly not fraud or perjury. It is perfectly normal. And signing up for an interview to discuss the employer's working conditions is also perfectly normal (How many hours am I expected to bill? What kind of clients will I work for? Will you hire me even though I'm gay? If not, why not?).

Any employer who wants to require interviewees to sign sworn statements that they already want to work for them may do so. Any employer who requires interviewees to sign sworn statements that they already want to work for them is unlikely to find many recruits.

To the extent that signing up for an interview with JAG would be a form of protest, it is absurd to suggest, as Adam does above, that this is taking advantage of our "open" society. On the contrary, it is in opposition to UNopen aspects of our society--compelling law schools to entertain recruiters who ban gay and lesbian employees. And to the extent that it is a form of protest, it is the very best kind of protest. It is sitting down to engage another human being who represents an opposing point of view in a one-on-one discussion of a contentious issue that is very relevant to both parties. I am not advocating screaming one's beliefs at recruiters in person or though signs and notices opposing the recruiters' presence. I am advocating real discussion of the issue with the very people enforcing a policy that most lawyers and law students take for granted as just plain wrong.

The government's ban on gay and lesbian soldiers is bad policy, but its ban on gay and lesbian JAG lawyers is absurdly bad policy with absolutely no reasonable justification at all, other than animus toward gays and lesbians. The effort to rid the military of this policy is righteous and patriotic, not radical or offensive and certainly not worthy of being denied admittance to the bar, as some commenters have suggested.
3.15.2006 10:24pm
KMAJ (mail):
It would seem that this was an attempt at social engineering, trying to get through the legal process what cannot be accomplished through the legislative process, where it should be properly addressed. It is judicial activism in its purest form, except SCOTUS refused to go along.
3.16.2006 12:32am
Adam Scales (mail):
Joseph and I are in disagreement.

I teach at a southern law school, where JAG is a more popular career choice than it may be elsewhere. I do not understand in what way JAG is proving a point other than "we'd like to hire some good lawyers" when it recruits on campus. Like any other employer, I'm sure it takes pride in its mission. But, this is not an essentially political expression, as Joseph seems to imply.

Joseph's argument strains creduility in a manner consistent with FAIR's legal strategy when he suggests it is possible to have a good-faith intent to discuss a job one is not possibly interested in, during an interview. I suppose this is true for that (small, in my view) set of students who 1) truly want to work for JAG, but 2) are either gay, or feel so strongly about DADT that cannot in good conscience proceed with their preferred career path.

I will grant that such a person has something interesting to say, but it is a totally worthless venue - and the price will be paid by someone who does not get that spot (or the next person in the half-filled JAG dance card who sits down with an needlessly irritated interviewer).

For example, I see no reason to believe that Joseph himself actually wants to work for JAG, though he evidently welcomes the opportunity to discuss DADT (instead of, for example, his qualifications and desire for the position). Why, exactly, should his interest in self-expression be allowed to intrude into a job interview for a position he does not want? I think it safe to assume that JAG interviewers are not in fact interested in discussing the merits of DADT with nonserious candidates, if at all.

I do not wish to impute the more "aggressive" protest tactics to Joseph, and take him at his word. But I am at a loss to see why he thinks the JAG interview is likely to be a successful pressure point for changing DADT.

Several years ago I was in Seattle, which has historically been pretty tolerant of protests. Some group or other had stopped traffic at a few critical intersections. I wasn't affected at all; I merely heard it on the radio. All I could think about were the unwilling participants - the ambulances unable to get to stricken patients; people made late for work or job interviews; the statistically more likely fender benders resulting from road congestion, etc. I was then, and remain today disgusted by the arrogance of someone who would presume that his right to speak outweighs my right not to listen. Unable to persuade me to listen, such people abandon persuasion altogether.

Obviously, no one is going to die because of phony interviews. But some people might miss out on job opportunities that are important to them. Joseph has more confidence than do I in his ability to discern that the price of his chosen expression - a price paid by someone else - is worth it. I personally could not make that decision for someone else. And I almost always think that I am right.
3.16.2006 12:37am
Kovarsky (mail):
KMAJ,

I would remind you that "going through the legal system" to get "results that you couldn't get legislatively" is neither "inherently activist" nor inherently "bad."

For an example of why it's not inherently "activist," see, e.g., new South Dakota law banning abortion (no court striking it down would be "activist," it woud just be adhering to legal precedent, although it would usurp legislative authority).

foir an example of why it's not inherently "bad," see, e.g., Brown v. Board of Education.
3.16.2006 1:03am
Hovsep Joseph (mail) (www):
Adam, There are plenty of gay law students who would genuinely consider working for JAG if they were allowed to (including myself), just as there are plenty of other gay Americans who would consider serving the military if they were allowed to. In fact, many of them choose to lie about their sexuality in order to have access to such opportunities.

DADT is grossly unfair, especially in the JAG context. If I understood you correctly, you disagree with DADT as policy but don't think challenging the military's access to on-campus recruiting opportunities or talking to military recruiters about the issue is an appropriate way to challenge the policy. I don't think engaging JAG recruiters is a worthless way to address the issue but I accept its certainly not the only way and there may be better ways. You say you prefer "silent" protests. How would a silent protest work in this context?
3.16.2006 4:08am
jgshapiro (mail):
Joseph:

And to the extent that it is a form of protest, it is the very best kind of protest. It is sitting down to engage another human being who represents an opposing point of view in a one-on-one discussion of a contentious issue that is very relevant to both parties.

Scales:

I think it safe to assume that JAG interviewers are not in fact interested in discussing the merits of DADT with nonserious candidates, if at all.
Irrespective of his interest in discussion, the JAG recruiter has no ability to change the status quo. It's not as though a JAG recruiter can ignore DADT, or has any influence on its application. DADT was a law passed by Congress (and signed by Clinton). JAG recruiters are relatively low-level members of JAG who have no law-making influence. If you wanted to engage someone who had the ability to change this policy, you would oppose requests by Congress to recruit on campus and you would take up interview seats for jobs as a legislative assistant to members of Congress who voted for or still publicly support the policy (if such interview seats existed).
3.16.2006 7:25am
David Chesler (mail) (www):
Marty Lederman has an interesting reaction to Balkin's post and to the Solomon Amendment decision. Professor Lederman makes the very useful point that (as now construed by the Court) there's a real sense in which the Solomon Amendment requires preferred, not equal, treatment of military recruiters.

All the animals are equal, but some are more equal than others.
3.16.2006 8:37am
Anonymous Reader:
I have to agree with Adam Scales and jgshapiro. JAG recruiters have absolutely nothing to do with DA/DT or any other military policy that is established by Congress. In fact, we (I am in the military) give an oath to obey and follow all orders of the UCMJ. So, yes, signing up for interview slots for a JAG recruiter just so that you can tell him/her that you disagree with such and such policy is a total waste of time. Besides, what lawyer in his right mind would allow themselves to get embroiled in a hot political issue WHILE in the conduct of their official duties??!?!

JAG recruiters work to recruit applicants who are interested in pursuing a career in the military. Protesting them or wasting their time by signing up for time slots or whatever, would be like trashing a commercial place of business because you protest their policies, but all you're doing is making more work for the janitor. There are effective and ineffective ways to change policy and keeping a JAG recruiter or any kind of recruiter from doing their job is very ineffective especially since you KNOW beyond a shadow of a doubt who can/should/could change the policy (read: Congress).

And please, no one get all hung up about the military advises Congress on military policies, blah, blah, blah... Congressmen and women are elected by the people to make decisions! I know that this has been said over and over on this blog in particular. The military is under civilian control for a reason. If it was that easy for the military to set policy, don't you think we'd give ourselves pay raises and better benefits? There would be no issues with VA benefits and our junior enlisted servicemembers would NEVER have to use food stamps.

Sorry to go on a rant, just had to get it off my chest.

What I would love for someone to comment on is the active effort to keep recruiters out of high schools and to not allow young men and women the opportunity to enlist in the military. I know it doesn't really have to do with DA/DT or this post, but I think that's a more pertinent issue.

Anonymous Reader
3.16.2006 8:41am
Guest44 (mail):
Joseph also mischaracterizes why JAG comes to campus. They're not there to prove a point; they're there to recruit.

The interview process is streamlined for students to go into firm work. JAG being able to list itself in the database and interview in the same hotel rooms as firms dramatically increases the chances they'll get to talk to students who might have slight interest but never would have taken the initiative if it weren't for the simplified recruiting sign-up process.
3.16.2006 10:04am
Richard Aubrey (mail):
Sometime toward the end of the nineteenth century, our society began to believe, or had foisted on it, the view that quality, worth, moral wonderfulness, and virtue were synonymous with accumulated classroom seat time. The more of the first, the more of the second. No argument.
This thread's absolutely foundationless self-congratulation is astounding. At my age, this perhaps shouldn't be astounding, but it is.
It is not true that more education means less approval of the military. It is true that the precious, self-centered narcissists tend to, if they can, go to the fading Ivies. But they'd have disapproved of the military if they were in community colleges.
Chicken-egg.
And, for all the references to DADT, it's clear that the real issue is anti-military.
3.16.2006 11:15am
Ken Arromdee (mail):
So, a law student's decision to sign up for any given interview without a well-formed intent to commit to employment with that employer is certainly not fraud or perjury.

There's a difference between "without a well-formed intent" and "without any intent at all". It's one thing to go to an interview when you're not sure you want the job or you're not sure you'll be accepted. It's another thing to go to an interview where you *know* you don't want the job or you *know* you won't be accepted.
3.16.2006 11:23am
Richard Aubrey (mail):
Ken.
This tactic is but one reason lawyers don't score very well with the public in matters of integrity.
Not as high as other institutions such as...the military.

Man, who'd have thought????
3.16.2006 11:37am
SabreRedleg:
Joseph said:

DADT is grossly unfair, especially in the JAG context.

What's special about the JAG context?

Having briefly served as a recruiter, the idea that they go to schools just to prove a point is ridiculous. If the military's needs could be met entirely from walk-ins, there wouldn't be a need to waste so many resources on recruiting. The reality is that there are many people who never consider a military career until they're exposed to the idea. Some of the best graduates of my ROTC program had no notion of joining the military when they arrived at school.
3.16.2006 1:10pm
Hovsep Joseph (mail) (www):
SabreRedleg, I think that DADT is unfair in every context, but most justifications put forth to justify exclusion of gays and lesbians from military service have to do with the unique circumstances of active combat. I haven't heard any justification for why the qualifications of lawyers or other non-combat members of the military should be judged on their sexual orientation.

Some commenters have suggested that law schools are using DADT as a pretext for a more basic antipathy toward the military. I know there have been post-Vietnam attempts at some schools to keep ROTC and military recruiters off campus, and some people may now be using DADT as a pretext, but I genuinely don't think that's what's going on here on a broader level. Unlike the post-Vietnam protests of the military, this present movement stems specifically from law schools. I think perhaps people in the legal world are more sensitive to status-based employment discrimination, and may additionally be motivated by the complete lack of any justification for applying DADT to lawyers.

I'm a little surprised so many commenters express shock and dismay at the apparent grave moral flaws in my suggestion that students meet with recruiters to discuss DADT, but fail to discern the seemingly far greater moral deficiency in the blacklisting of all gay and lesbian law students and lawyers from the opportunity to work for JAG regardless of their qualifications. I suppose these commenters are also offended by the decisions of Sandra Day O'Connor and Ruth Bader Ginsburg to sign up for interviews with law firms that they knew would not hire them based on their sex? The idea that gay law students are morally bound to just shrug their shoulders and abstain from interviewing with those employers because they know they will be discriminated against is just plain wrong.

Perhaps my experience with JAG at Cornell is not representative and JAG in fact rakes in the recruits at other law schools, but that certainly is not the case at Cornell. As I have said, I do not suggest that law students who want to interview with JAG should be discouraged or prevented, but if recruiters expect to interview on campus, they should plan to interview whatever students sign up on the same terms as other employers. JAG cannot expect the law schools or students to do its dirty work and prevent otherwise-qualified gay applicants from signing up for interviews.
3.16.2006 2:34pm
jgshapiro (mail):
I'm a little surprised so many commenters express shock and dismay at the apparent grave moral flaws in my suggestion that students meet with recruiters to discuss DADT, but fail to discern the seemingly far greater moral deficiency in the blacklisting of all gay and lesbian law students and lawyers from the opportunity to work for JAG regardless of their qualifications
I don't see anyone here defending DADT as applied to JAG on its merits, though I am sure some readers do. The question is rather whether occupying interview seats is a useful or appropriate way to counter it. The answer is clearly no, and I think Anonymous Reader's analogy to trashing a commercial establishment to oppose it policies is an apt one - the only people you hurt are the recruiters who have no say in the policy set by Congress and the would-be recruitees that could be hired by them who are prevented from meeting with the recruiters.

Also, I don't see how this is closely analagous to a Justice O'Connor interviewing as a law student with firms that would not then hire women. Those firms were not prohibited by law from doing so. Therefore, the senior lawyers who do much of the on-campus recruiting for law firms might go back to the firm and persuade their colleagues to give someone like O'Connor a try. Here, you have junior JAG lawyers or non-lawyer recruiters interviewing on campus who have no influence on Congress, which made the policy. Why not instead organize meetings with Congress members who support the policy and take up their time? Or work toward electing people who agree with you?

[If you had the JAG himself interviewing on campus, or some other high ranking General or Admiral, you might have a point, though I would still wonder why you don't focus your efforts on the policy-makers in Congress and not the policy-executors in the Pentagon.]

Furthermore, I do not see how the law schools are doing the 'dirty work' of enforcing DADT by not encouraging law students who JAG cannot hire from signing up for interviews. Nor do I see how it is the moral duty of gays - again using Anonymous Reader's analogy above - to essentially harass the Walmart janitor in order to make their point.
3.16.2006 5:14pm
TC (mail):

I think that DADT is unfair in every context, but most justifications put forth to justify exclusion of gays and lesbians from military service have to do with the unique circumstances of active combat.

Army JAGs are currently in combat in Iraq. JAGs are currently sharing the same types of living and combat conditions that almost all other Soldiers are enduring.
3.16.2006 5:24pm
Hovsep Joseph (mail) (www):
My intent in commenting under this post was to expand on Balkin's thoughts about the extent to which the law school community might make JAG recruiters feel unwelcome. I'm afraid I've pushed my point as far as I can so I should stop commenting before I veer too close to ranting. I'll just try to summarize my perspective on the issue.

As an openly gay man who finished law school in the past few years, JAG's presence on campus--offering to interview my peers but singling me and other gay and lesbian students out as ineligible for consideration, regardless of our legal acumen, our academic performance, or our commitment to public or patriotic service--has likely stung me in a much more personal way than it has other commenters. I think that if JAG comes to campus in such a context, their exposure to the effects of their hiring practices should not be whitewashed. If JAG decides not to hire me because I'm gay, they can tell me to my face in the same way that they can tell me that my grades are inadequate or that I lack a discernable commitment to public service. That's part of the job of a recruiter.

Its frankly difficult for me to relate to the rationalizations people make for DADT. I honestly don't see how my existence as a gay man serving with other JAG lawyers and/or soldiers in the U.S. or in Afghanistan would really compromise national security any more than would serving with people with religious, ethnic, economic or social lives that differ from mine. I wish people could see the fallacy in the thinking that homosexuality is somehow incompatible with military service. I wish they could see how history will judge them. I wish they could see that now.
3.16.2006 7:15pm
KMAJ (mail):
Kovarsky,

Could it not also be described as social engineering or legislating on morality through the courts ? Whether it is inherently bad or good would seem to be irrelevant. That would be subscribing to an ends justifies the means modus operandi. That would seem to be a dangerous road to travel down. It is not the courts role to engage in ruling on morality, that is the role of society itself.
3.16.2006 10:44pm
Anonymous Reader:
Joseph,

It's obvious that you have some strong thoughts and feelings on DA/DT, however, they are a non-player when it comes to JAG recruiters. First of all, there is no black list. A recruiter has no idea who is gay or who is not; and BY LAW, cannot ask you if you are or not. Secondly, there are many applicants who wish to join the JAG corps or just the plain ole military for that matter, but cannot due to some kind of disability. So following your logic, a paraplegic should have the same opportunities to interview with a JAG recruiter.

Don't get me wrong, I appreciate your thoughts and opinions on this issue. But it would be better to educate the policy makers in Congress than to attempt to educate someone who is just trying to do their job to the best of their abilities.

Anonymous Reader
3.16.2006 10:53pm
Californio (mail):
The question must be: Do you want to change DADT, or merely boost your own ego? If you want change - get a good job and spend money to lobby Cogress - they CAN be bought. Yelling at the workers (JAG lawyers) does nothing to "hurt" management (Congress).
3.17.2006 1:34am
Richard Aubrey (mail):
Californio: Your point is correct.

The emphasis on inconveniencing JAG or other recruiting is, or ought to be, obviously bassackwards. As a practical matter, its only effect is on the egos of the participants. And to express their anti-military views.

If they were a quarter as smart as they expect the rest of us to believe, they'd be working Congress as you suggest. Since they probably are a quarter as smart as they expect the rest of us to think, they know better. But they continue. Conclusion: Their goal is other than as stated.
3.17.2006 4:57pm