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Debate Club
DEBATE CLUB 10/18/04

Military recruiting on law school campuses?

Phillip Carter and Adam A. Sofen debate.

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Ten years ago, Congress passed the Solomon Amendment, which made federal funding for universities contingent in part on the military being able to recruit on campuses. Despite the law, some law schools limited the access of military recruiters, arguing that the military's "don't ask/don't tell" policy about the homosexuality of people in the armed services violated the non-discrimination policies of the schools.

In 2000, after several years of not responding to the constraints the schools placed on military recruiters, the federal government threatened to pull all funding from the universities whose law schools didn't allow recruiters, sometimes hundreds of millions of dollars. The schools relented, but students, professors, and more than twenty law schools filed suits against the Defense Department, calling the law unconstitutional. Now, with recruiting season in full swing, students at some schools have mobilized to stop their classmates from going ahead with JAG interviews.

Should the military be permitted to recruit on law school campuses?

Phillip Carter is a former U.S. Army officer and recent graduate of UCLA Law School; he co-authored an amicus brief supporting the government and the Solomon Amendment in FAIR v. Rumsfeld. Adam A. Sofen, a third-year student at Yale Law School, is a plaintiff in SAME v. Rumsfeld.

Carter: 10/18/04, 09:07 AM
As I see it, there are at least three discrete issues presented by the current debate over the Solomon Amendment:

(1) Should gays be allowed to serve in uniform? As a recent veteran, I acknowledge the difficulty of integrating the military along sexual orientation lines. But I feel it's the right thing to do. The challenge is doing it while simultaneously maintaining cohesive units. A serious generation and rank gap exists in the military on this issue; according to a recent Annenberg poll, more than 50% of career officers and sergeants oppose this kind of move, while 50% of junior enlisted personnel support the open service of gays in the military. Managing that schism will be tough, even for the best leaders.

(2) Given that the military discriminates against gays (and many other groups, such as the old and the infirm) in recruitment, should colleges allow the military on campus? I happen to think that U.S. universities should do so, because of the greater good served by the military in U.S. society. At a very basic level, we would not have any freedoms at all but for the existence of the U.S. military. I also believe very strongly in the value of military service as an economic and professional opportunity, and the need to encourage young men and women—particularly at elite schools like Yale and Harvard—to serve their country in uniform. However, the military's recruitment rules clearly run afoul of university non-discrimination policies. This creates quite a dilemma for the universities, where the principles of non-discrimination and equity clash with the societal value of the military.

(3) If universities decide to bar the military because of its policy on gays, or because of some other general anti-military sentiment (as evidenced during the Vietnam era), should the federal government be allowed to take university funding? This is the heart of the Solomon Amendment debate, and it is a thorny Constitutional question. Generally, the Constitution allows the federal government to condition the receipt of federal funds on certain behavior, such as the conditioning of federal highway money on states making twenty one their minimum drinking age. However, when this power is used to check forms of dissent, like that of law schools and professors opposed to "don't ask/don't tell," there is a Constitutional tension between this spending power of Congress and the First Amendment power of the professors and students.

The problem, as I see it, is that the "don't ask/don't tell" policy has been carved into statute and buttressed by years of court decisions, to the point where it is invulnerable to legal attack.

Even if Sen. John Kerry wins this November, he can't unilaterally change this statute the way President Clinton tried to in 1993, because it's now a matter of federal law instead of military policy. Attacking the Solomon Amendment won't really address problems (1) or (2) as I describe them; it will only inflame the opposition to gays in the military, and frustrate the long-term political change necessary to effect any change in this policy.

Sofen: 10/18/04, 11:26 PM
As you suggest, Phil, the Solomon Amendment and "don't ask, don't tell" are unavoidably linked. Although we agree that gays should be permitted to serve openly in the military, I'd like to start with a couple of points you gloss over.

First, the military's discrimination against gays is nothing at all like its insistence on soldiers who are young and able-bodied. Gay people are eminently capable of serving on the front lines—as proven by the armed forces of Israel and the United Kingdom, both of which allow gays and lesbians to serve openly without incident. Increasingly, then, the military's no-gays policy (or "don't ask, don't tell," which excludes gays almost as thoroughly as an outright ban) looks like a matter of base prejudice.

Moreover, while it will certainly be challenging both politically and administratively to integrate gays into the armed services, concerns about "unit cohesion" are becoming less and less determinative. As you note, a growing majority of junior personnel support ending the ban. For my 23-year-old brother, a naval officer, and many of his Academy friends, allowing gays to serve is a no-brainer. Congress will undoubtedly make it hard to overturn "don't ask, don't tell," but given the firm trend in American society toward generous acceptance of homosexuality, equality is a matter of time.

The Solomon Amendment looks a lot different in this light. At law schools like Yale, nondiscrimination—the idea that every student should have the same opportunities to succeed on the merits, period—is a foundational principle. The Solomon Amendment asks us to abandon that principle to accommodate an employer whose discrimination against gays has no reasonable or practical basis. (It's especially galling when you consider the kinds of jobs law students are interviewing for: Overheated rhetoric about elbowroom in foxholes doesn't have much relevance to the daily work of a JAG officer.)

Worse, the Pentagon officials aggressively pushing the Solomon Amendment are perfectly aware that doing so won't help them attract qualified candidates from top schools. If anything, it has the opposite effect—alienating otherwise sympathetic students who would consider military careers but who dislike the military's heavy-handedness. I agree that it would be terrific for all concerned if more Ivy League grads served in the armed forces. (I would love to have the opportunity.) But for the Pentagon, this isn't about getting good recruits, it's about making a point.

The issue, then, isn't military vs. universities; it's conscience vs. capitulation. This is especially true given the status quo that the military chose to upend. After the passage of the Solomon Amendment, Yale and the military had worked out a delicate de facto compromise: The military could contact students directly and could request meeting space on campus, but it didn't take part in the "official" fall career fair. Interested students got military jobs; the military got qualified candidates; the school got to preserve its nondiscrimination policy. The Pentagon chose to upset this apple cart in the name of symbolism. Now the law schools have turned to the courts to vindicate their principles. To me that's a sensible, even conservative response.

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Carter: 10/19/04, 11:42 AM
I like the way you frame the issue, Adam, as one of conscience versus capitulation. That sort of soaring rhetoric helps capture what's at stake here—an epic clash of Constitutional values implicating no less than our right to free speech and our expectation that the government will provide for the common defense. But don't you think that both sides undermine their positions when they choose an alternate arrangement like that you praise at Yale? This detente may serve practical purposes, by allowing JAGs to recruit while not offending too many students. But let's be honest—isn't this really a form of capitulation, or even appeasement? It seems to me that the military is giving up the right to recruit openly and fully on campus, and the students are caving on principle in order to keep their schools on the federal dole. Similarly, shouldn't law schools object to the recruiting by the Justice Department and other federal agencies, who are part of the same executive branch that implements and litigates on behalf of "don't ask/don't tell"? That's like allowing the New York office of a law firm on campus to recruit when you know that its Charleston office discriminates against African-Americans. Why the inconsistency? It seems to undercut your rhetoric that this is a matter of conscience, and makes it appear this is more a matter of interest.

The problem with the law in this area is that we also have to deal with facts—and facts are messy. You dismiss the military's concerns about discipline out of hand, saying that "concerns about 'unit cohesion' are becoming less and less determinative." I beg to differ-questions about unit cohesion are perhaps the most important of all the questions involved. Military sociologists have proven the link between small-unit cohesion and combat effectiveness. Soldiers fight for their buddies, perhaps more even than for their country, as this recent Army War College study titled "Why They Fight: Combat Motivation in the Iraq War" indicates. If and when the military integrates along the lines of sexual orientation, it must take unit cohesion into account, because of the critical importance that cohesion plays in maintaining an effective fighting force.

You might say that's for the military to worry about. But such indifference to military concerns can create problems for your movement. In 1993, it appeared that gays might get the chance to serve their country openly in uniform—President Clinton said he was committed to doing so, and he initiated the policy process to make it happen. Unfortunately, the military did not see eye-to-eye with its Commander-in-Chief, and it waged a public campaign to fight this policy change, led by then-Gen. Colin Powell of all people. (The spectacle of someone who benefited from President Truman's racial integration of the military fighting the integration of the military along other lines was quite ironic.) The military establishment successfully fought the Clinton administration and gay rights community on the grounds of unit cohesion, saying in effect that this move would destroy the U.S. military. I don't believe that would happen, but this argument was tremendously successful, as evidenced by the Congressional findings of fact which preface today's "don't ask/don't tell" statute. I believe that for any future movement on this issue, you will need to successfully account for the unit cohesion issue, through research like that done by Aaron Belkin and his colleagues at UC Santa Barbara. The military doesn't exist as an institution of equality or democracy—it exists to fight and win America's wars, so that equality and democracy may flourish here. By way of historical analogy, the U.S. military is Sparta, and you cannot impose Yale's Athenian values on Sparta and expect it to still win wars.

Ultimately, what I think this reveals is the institutional inability of the courts to deal with this issue. This is not a new point; scholars have long advanced the "separation of powers" argument that legislatures and executive agencies are better at making and implementing policy than courts, particularly where there are lots of messy facts. Notwithstanding the presence of many conscientious and intelligent judges on the bench, I fear that institution is wholly incapable of making good policy on this issue for epistemological reasons. They simply don't have the information, the expertise, or the institutional framework necessary to decide this issue for the good of the country. Of course, that won't stop the courts—they will decide this issue, for as John Marshall wrote two centuries ago, it is emphatically the duty of the courts to say what the law is. But when they do, I believe the courts will give too much weight to the law, and not enough weight to the facts.

Sofen: 10/19/04, 08:25 PM
Thanks, Phil, for a thought-provoking response. I think we're continuing to conflate two issues here: "Should gays serve?" and "If not, should law schools be forced to admit military recruiters?" I'll tackle each in turn.

When it comes to ending the ban on gays in the military, you make a crucial point: Unit cohesion matters, and it's not just up to the military. Part of the solution will be strong presidential leadership. As you point out, Colin Powell and other military leaders took the remarkable step of publicly challenging their Commander-in-Chief in 1993, and in so doing undercut his already marginal authority with rank-and-file soldiers. When—not if—there's sufficient support in Congress to end the ban, the president must leave no doubt that an order is an order, as Truman did. The generals and admirals will set the tone for those below them.

But the challenges aren't insurmountable, and not just because young soldiers are increasingly tolerant of gays. For one thing, plenty of gay people already serve in the military, some quasi-openly, and they've figured out how to serve without friction alongside sometimes homophobic peers. For another, military culture makes it unlikely that large numbers of gay soldiers will want to disclose their homosexuality widely even once they're permitted to do so. (A 1993 RAND study of the issue concluded that "[a]cknowledged homosexuals are sensitive to the overall norms and customs of their organizations" and that "heterosexuals generally behave toward homosexuals more moderately than would have been predicted based on their stated attitudes toward homosexuals.") But you're right, advocates of integration (you and me both) need to do a better job of making the case to the public.

On to the Solomon Amendment. Your description of what seems like "appeasement" by Yale and other universities is an oversimplification. Yale Law School's goal is not to block its students from serving in the military. Most of my classmates and professors view military service as an honorable calling and a critically important one. The law school will even help repay the loans of students who go into the armed forces, like any other public service job. But at the same time, Yale wants at least to ensure that its own resources don't assist discriminatory employers in the act of recruiting some of its students and not others. (The difference between JAG and other executive branch employers is that the Justice Department, to take one example, signs the school's nondiscrimination agreement every year while the military refuses.) The compromise position—permitting the military to contact students but outside of the school-sponsored career fair—may seem lawyerly, but it's the best way to balance these two sincerely held principles. To paraphrase Barry Goldwater, lack of extremism in defense of liberty is no vice.

Why not just foreswear "the federal dole," as you suggest? That response misses the magnitude of what's at stake for universities. If the military follows through on its threats, Yale alone stands to lose some $300 million in federal funds, only a fraction of which goes to the law school. Most of the money pays for crucial medical research. It's literally irreplaceable, as the Pentagon understands. The military frames the Solomon Amendment as a "choice," but it's no coincidence that of the scores of U.S. law schools whose universities receive federal funds, not a single one has managed to resist the pressure from the Defense Department to admit military recruiters. (The lone holdout, tiny William Mitchell College of Law in St. Paul, Minnesota, had the luxury of receiving no federal funds to begin with.)

The real question is not whether Yale's starting position was principled, but whether the military's coercive response was. I'm curious to know what you think of the Solomon Amendment itself—of the notion that law schools should be forced to admit military recruiters against their will, in violation of longstanding, neutrally applied nondiscrimination policies. You haven't said much about this, other than that it's a "thorny Constitutional question" and that courts should keep out of the decision. But deciding Constitutional questions like the validity of the Solomon Amendment (as opposed to policy judgments like how to integrate the military) is, of course, exactly what courts are called on to do. To me, this is a clear-cut, unconstitutional infringement on academic freedom and free association. If you were a federal district judge presented with such a lawsuit, Phil, how would you respond?

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Carter: 10/20/04, 11:13 AM
Actually, what Sen. Barry Goldwater said at the 1964 Republican national convention was: "Extremism in the defense of liberty is no vice; moderation in the pursuit of justice is no virtue"—not that the lack of extremism is a good thing, as you paraphrase. But no matter, because the problem with your side's argument is not that it takes a position of moderation, as you suggest. The problem is that it goes entirely too far—the Solomon plaintiffs take up the mantle of Barry Goldwater to advance an extreme argument with extreme results for law schools and the nation.

Consider the policy on the matter from the American Association of Law Schools (AALS), the accrediting body for law schools in the United States. Current AALS policy (see Bylaw 6-4 and Regulation 6.19; AALS memos 00-2, 98-23) requires that law schools exclude any employer who does not comply with their non-discrimination policy—not with what the law is on the matter, but with what a bunch of law professors think ought to be the law of the land. Right now, the AALS sets this policy aside because of the Solomon Amendment, but evidence submitted by the plaintiffs in FAIR v. Rumsfeld makes it clear that but for the Solomon Amendment, the AALS would require law schools to completely exclude the military as a condition of accreditation. 96 per cent of American ABA-accredited law schools belong to the AALS, and thus would be affected by this policy; thus, the military would be precluded from directly recruiting at 96 per cent of American law schools. That is an extreme result, and this is precisely what the plaintiffs in the collective Solomon lawsuits seek to gain.

Our nation is at war, and it is a war like no other. The rule of law matters more now than during any war in our nation's history, because of the technology-driven transparency of this battlefield and the need to win hearts and minds. As the brilliant political theorist Michael Walzer says, the pursuit of justice in war is now a military and strategic necessity, for victory can only be achieved through the marriage of just ends and just means. JAG lawyers play an absolutely critical role in ensuring that our nation's military acts in just ways. Indeed, as this article suggests, had U.S. JAG and civilian government attorneys been more attuned to issues of justice, they might have prevented some of the Abu Ghraib and Guantanamo abuses from taking place. If the plaintiffs prevail in your case, the military will have an exceptionally difficult time recruiting JAG officers, especially from schools like Yale which have already booted ROTC off campus and which have signaled they would boot JAG too but for the Solomon Amendment. Granted, JAGs don't generally conduct combat patrols or bombing missions, but they do advise commanders on when such missions are prudent and legal.

Don't you want the best legal minds in America doing that job?

Sofen: 10/20/04, 07:38 PM
Sorry for the confusion—I flipped Barry Goldwater on purpose. That'll teach me to use imprecise words like "paraphrase."

I found myself nodding in agreement to your paean to a strong JAG corps. (Abu Ghraib bad; rule of law good.) But at the same time, it's something of a non sequitur. The Solomon lawsuits don't attempt to prevent the military from hiring law students, and they wouldn't have that result. I'll take my school as an example. If a court were to overturn the Solomon Amendment, military recruiters wouldn't be prevented from recruiting Yale students, as I explained in my previous posts. Rather, they merely wouldn't be able to use official resources of the school's Career Development Office in doing so. As I understand it, this was the status quo at Yale during the two decades between the addition of sexual orientation to the nondiscrimination policy in 1978 and the military's aggressive reading of Solomon starting in 2001-02. This is hardly the extreme result you make it out to be.

From a recruiter's point of view, it would be a modest setback—suggesting that Congress's enactment of the Solomon Amendment and the military's vociferous enforcement of it have little to do with actual recruiting. Rather, they are born of a resentment of what you euphemistically called universities' "Athenian" values, which—no surprise here—drive conservatives batty. Rep. Gerald Solomon (R-N.Y.) told his colleagues that his amendment would show universities "that their starry-eyed idealism comes with a price." Rep. Richard Pombo (R-Cal.) urged a yes vote so as to "send a message over the wall of the ivory tower of higher education." That's not recruitment policy, it's culture war. When it comes to national politics, gays and lesbians and their Ivy League law-prof allies make nice, fat targets.

Both sides in this dispute are warring less about results than about symbolism—which, don't get me wrong, is tremendously important. For the law schools, what's infuriating is the idea that a willfully discriminatory employer can march onto campus and, using the schools' own resources, hang out a sign that says "Some Students Need Not Apply." For the backers of the Solomon Amendment, it's the (unfounded) perception of smug liberal professors thumbing their noses at the services. But the actual number of law students who enter the JAG corps won't change much regardless of who wins.

In fact, by adopting a needlessly adversarial stance toward students and faculty, your side makes it less likely that America's "best legal minds" will be drawn to military careers. The cultural divide between elite universities and the military is decades old, but after 9/11, there was a genuine opportunity to repair the breach. By taking such an uncompromising line—in essence, giving schools like Yale the finger—the Pentagon has guaranteed that that won't happen.

I notice you still haven't addressed my question about the Solomon Amendment's constitutionality. Am I to conclude that you agree that it's an infringement on academic freedom?

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Carter: 10/21/04, 12:11 PM
I accept your nomination to sit on the bench to judge the merits of your case, even though I find our theoretical and political discussion much more interesting. The law is fairly well settled here, and so I think the legal claims you present are quite easy to decide. Perhaps that's why FAIR v. Rumsfeld was decided against the plaintiffs in New Jersey, and why it's likely Burbank v. Rumsfeld and SAME v. Rumsfeld will face a similar fate.

Congress has the constitutional power to tax and spend for the general welfare. The Supreme Court has allowed Congress to condition the receipt of federal funds in a number of ways, such as the requirement that states make 21 their drinking age or that medical professionals comply with federal guidelines on family planning. These have all been upheld, notwithstanding significant federalism, separation of powers, and First Amendment concerns like the ones your case attempts to assert. Hospitals that take federal funding must similarly comply with HHS guidelines and directives, like the current federal stem-cell policy, even if they don't agree with them as a matter of medical science. Similarly, private government contractors must abide by a book full of rules when they accept federal funds—again, no constitutional problem, according to the courts. Even your First Amendment argument falls flat, for the Court has repeatedly held that the First Amendment applies differently in the military context where overriding national security concerns are at stake. And forget about a "separation of powers" argument—Congress has twice acted to empower the President here, via the Solomon Amendment and the "don't ask/don't tell" statute itself. According to Justice Jackson's oft-cited concurrence in Youngstown, the President's "authority is at its maximum," and is "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." So here, as a straightforward matter of constitutional law, your case is quite easy to decide: summary judgment (or possibly even Rule 12 dismissal) for the government.

Unfortunately, I think your movement also ignores all the situations where this conditioning of government funding can have a positive effect. Title IX is a great example of where conditions on federal funding have been used to force schools across the nation to offer equal opportunity—the paradigmatic level playing field, if you will—to female athletes. The anti-Title IX forces have made arguments very similar to yours; fortunately, for women across America, they have lost. Similarly, what if the state of California, in a bid to enforce its progressive law on domestic partner benefits, required government contractors to give those benefits to their employees? Would you revolt then, or call that a good use of the spending power? It's hard to draw the line between good and bad uses of the spending power on anything approaching a principled basis, so I choose to err on the side of what the Constitution says, by letting Congress decide where my tax dollars should go.

Sofen: 10/21/04, 11:50 PM
I find theory and politics interesting as well, but law students love arguing about doctrine most of all. (By the way, I should offer a big disclaimer here: My views are no one's but my own, and I offer them as a commentator rather than a litigant.)

I don't agree that these cases fall within "the military context," where the courts give the executive branch a wide berth—it's not as if we're discussing the detention of enemy combatants or (for that matter) the constitutionality of "don't ask, don't tell" proper. The context is universities, and the conditions the government may place on their federal funding. There, the rules are very different. In fact, in the very family-planning case you cite, the Supreme Court noted that "the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted" by the First Amendment.

This so-called "unconstitutional conditions" doctrine is one of the more muddied and ambiguous in current constitutional law. (Though admittedly, there's plenty of those.) But a few consistent principles stand out. The Court has held, for instance, that property tax exemptions may not be conditioned on the recipients' taking a loyalty oath, and that grants to TV stations can't be used to stop them from editorializing.

In other words, the government can't simply attach any conditions to funding that it pleases, particularly when the condition is that the beneficiaries speak a certain message or refrain from speaking one. Insisting on a message—of loyalty to the military—sure looks like what Reps. Solomon and Pombo, who I quoted yesterday, seemed to have had in mind.

You've said it's hard to draw a line between good and bad conditions, but obviously the courts must do this all the time. We'd both agree that, to take an extreme example, the government couldn't make grants to charities provided they not hire blacks, or agree to fund newspapers so long as they endorse President Bush. All funding conditions are not created equal. This is why your Title IX and domestic partnership examples have it backwards—it doesn't follow that just because the government can use its billions to end discrimination, it can also use them to end nondiscrimination.

Moreover, cases like those on family planning and the drinking age involve a nexus between the funding and the requirement. It's one thing for the feds to say, "We'll give money to women's clinics, you just can't spend it on abortion counseling." It's quite another to exploit medical research funds—which help university researchers fight AIDS, diabetes, and cancer—to make an unrelated political point about military recruiting. Modern research universities are critically dependent on federal dollars for scientific research. If they aren't in a position to give up that money, then in your view, is there anything Congress can't make them do or say? And if not, what becomes of universities' independence?

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Carter: 10/22/04, 12:36 PM
Actually, I don't find the "unconstitutional conditions" doctrine very confusing or ambiguous at all. Indeed, in the family-planning case we both cite— Rust v. Sullivan—the Supreme Court upheld the funding restrictions as legitimate, notwithstanding any First Amendment concerns. It is true that the Court has set a high bar for funding restrictions that impinge on other Constitutional rights—but in this case, the government met that standard. I don't see how you can say that academics have a stronger Constitutional right to boot the military off campus than doctors who want to advise their patients about their medical care—and thus, that your case should come out differently from theirs.

There is more than a little irony in your characterization of this debate as one about academic freedom. At its core, your lawsuit seeks to exclude a viewpoint from the legal academy and discriminate against an employer that does nothing more than follow federal law. In Grutter v. Bollinger, last year's landmark affirmative action case, the Supreme Court deferred to educators who asserted that diversity was essential to their educational mission. Indeed, if any part of America comes closest to Justice Holmes' renowned marketplace of ideas, it is the American university. And yet, instead of offering your own ideas as competition to the military's, you would seek to wholly exclude this viewpoint with which you do not agree. Can that really be the mission of Yale Law School—to banish those ideas which it finds wrong? That seems like the height of academic arrogance, not academic freedom.

And the biggest irony of all is that the JAG on-campus recruiting program doesn't actually discriminate on the basis of sexual orientation. Pursuant to Executive Order 13087, the JAG summer program (for which they recruit on campus) admits any qualified applicant, including those ineligible for a commission as a JAG officer. Gay students, including a friend of mine from Yale Law School, have served as summer JAGs. They have done quite well, and in the process, won many hearts and minds to the cause of letting gays serve openly in uniform. I would argue they've helped advance this issue far more than the lawsuits challenging the Solomon Amendment, because they've worked to change the military from within. Remember what happened last time this issue was raised, as I discussed Tuesday. The military successfully prevented President Clinton from integrating gays because it did not want them then. There are signs those attitudes are changing. A recent Annenberg survey of the military found that most officers and career sergeants opposed gays in uniform, but 50 per cent of junior enlisted personnel supported their service, indicating a significant generation gap on this issue. Your lawsuit undermines that change to the extent that it alienates veterans who might otherwise support your cause.

The best thing that can happen for the long-term effort to integrate gays into the military, I'm sorry to say, is for your lawsuit to fail.

Sofen: 10/22/04, 05:30 PM
Your discussions of Rust and of the marketplace of ideas at law schools are tied together, I think, by a major misconception: that opponents of the Solomon Amendment want to "boot the military off campus." I don't mind if the military recruits at Yale, but I disapprove of their attempts to claim Yale's institutional blessing in doing so.

As I've said before, Yale has always permitted students to invite military recruiters on campus—into law school classrooms, even—to spread their message all they want. More generally, discussion of this issue remains as robust and complex as ever. Students and professors who think our lawsuit is stupid can say so, and do. Last spring, the gay and lesbian student group invited a former JAG officer to explain why he thinks its opposition to recruiting is wrong. Debates like the one we're having this week happen all the time.

But the law school, as represented by its faculty, is entitled to a voice as well. Professors speak in the form of official school policies, like the nondiscrimination mandate we've been discussing, and decisions on how to spend school funds. The Solomon Amendment is an attempt by the government to commandeer that speech: to force Yale to welcome the military into a school-sponsored program, and to use Yale's funds to do so. The principal benefit that military recruiters get by taking place in the official career fair is the implication that they're "officially" welcome. But the law school should be within its rights to make clear that they aren't, because they won't (or can't) treat all students equally. Yale isn't trying to bar anyone from joining the discussion—but it ought to be able to reserve its seal of approval for messages it actually approves of.

(By the way, your distinction between the JAG summer program and the broader JAG corps strikes me as a technicality. Students tend to take part in summer jobs with the expectation that they may lead to permanent employment. An employer that automatically bars certain summer clerks from full-time jobs on the basis of sexual
orientation is not a nondiscriminatory employer. If it were, of
course, JAG would not hesitate to sign the school's statement of nondiscrimination, which it refuses to do.)

The most interesting issue you bring up, to my mind, is that of strategy. Does change come about more rapidly by noisily opting out of an unfair system or by quietly working to change opinions and perceptions within it? By refusing to deal with those we perceive as discriminatory, do we shame them or do we inflame them? Needless to say, this is a deep theoretical question that has divided every civil
rights movement in American history. If W.E.B. Du Bois and Booker T. Washington couldn't settle the matter, I doubt we're going to. My only modest observation is that both approaches may have merit in the long run. All legal challenges run the risk of alienating some of those who disagree—but they can also apply the pressure, direct and indirect, that helps to dislodge an unjust status quo. To take just one example, if lawsuits to challenge the Solomon Amendment hadn't been filed, I doubt we'd be here writing about it.

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