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"Equal Opportunity Recruiting"--A Commentary by Prof. Peter Schuck

(Earlier versions of this essay were published in the January 2004 issue of the American Lawyer and the January-February 2004 issue of the Yale Alumni Magazine. It will also appear in Professor Schuck's forthcoming Meditations of a Militant Moderate.)

Equal Opportunity Recruiting
By Peter Schuck, Simeon E. Baldwin Professor of Law

Military Recruitment on Campus: The Solomon Amendment

The Pentagon's mighty war machine is fighting on more fronts than you might imagine. As if its hands were not full enough with campaigns in Iraq and Afghanistan, it has just been thrown into a defensive engagement with another formidable foe--the American legal academy. Moreover, the law schools may enjoy a kind of home field advantage in court, even though their firepower is merely rhetorical, not lethal.

The conflict actually began in 1978, when New York University Law School adopted a policy denying its placement program to employers who discriminated in hiring on the basis of a student's sexual orientation. This policy, which simply added sexual orientation to the list of protected attributes (race, religion, national origin, veteran status, disability, and others), was quickly adopted by Yale Law School and many other law schools. The American Association of Law Schools (AALS) adopted this nondiscrimination policy in 1990, and its members applied it to military recruiters.

The Pentagon now had its casus belli. Congress supplied it with strong weapons in the mid-1990s, when it enacted the so-called Solomon Amendment, which in its current form denies federal funds to any institution that prevents the military from gaining "entry to campuses" or access to information enabling it to recruit students. If one "subelement" of a university (a law school, for example) violates Solomon, it jeopardizes almost all of the university's federal grant funds, not just those from the U.S. Department of Defense (DOD).

This provision remained essentially a dead letter until the September 11 terrorist attacks. In December 2001, with the Afghanistan war under way, DOD complained that many schools were discriminating against military recruiters in violation of Solomon. DOD's correspondence about Yale Law School's campus interviewing program reveals the agency's militant stance. Yale argued that it was in compliance with Solomon, in that military recruiters can visit the campus, access student information, and use law school classrooms for informational meetings on student request. Students can reserve rooms for interviews, and Yale staff, if asked, will even help military interviewers meet with law students in non-law school university venues. DOD replied that even this arrangement discriminates against the military, because Yale denies DOD some placement services that Yale makes available to non-discriminating recruiters. DOD therefore threatened to withhold Yale's $300 million in grants. Succumbing to this pressure, Yale and other law schools suspended their nondiscrimination policies as applied to military recruiters, while urgently asking DOD to clarify its interpretation of Solomon and explain why the schools' policies violate it.

In 2003, the Forum for Academic and Institutional Rights (FAIR), an umbrella group of law schools, sued in federal court in New Jersey, seeking declaratory and injunctive relief against DOD's interpretation of Solomon, citing constitutional and statutory grounds. The suit, which did not challenge (indeed hardly mentioned) the military's "don't ask, don't tell" policy, contended that law schools teach students to judge people solely on merit rather than on the basis of race, sexual orientation, and other traits that "bear no relation to merit." DOD's reading of Solomon, FAIR claimed, forces schools to use their personnel, facilities, and funds to propagate an abhorrent, homophobic message in violation of the schools' First Amendment rights of academic freedom, expressive association, and free speech. With affidavits from faculty and students, it insisted that coerced surrender to Solomon's demand is eroding the credibility of the schools' commitment to the nondiscrimination ideal. Asserting that the schools' interview rules do not interfere with military recruiting, FAIR argued that DOD's real purpose is to punish those who oppose "don't ask, don't tell." (Given the universities' notorious, long-standing opposition to this policy, however, the more likely motive is DOD's prideful resentment of the schools' unequal treatment of its recruiters).

There is much to applaud in the schools' legal challenge. "Don't ask, don't tell" is not a principled policy of tolerance or equality. Instead, it is an uneasy political compromise between the earlier flat ban on gays in the military and the full acceptance of them that equality demands. It places both gay and straight soldiers in a painfully ambiguous situation, encourages dissembling and exploitation (if not outright blackmail) of gays, and reinforces their existing stigmas. In practice, the policy has caused the cruel outing and arbitrary discharge of many gay soldiers who boast proud records of devoted military service. Solomon, like all categorical fund cutoffs, is a crude enforcement tool designed to exert pressure on institutions that do the government's business. Some of its supporters in Congress and many in DOD were eager to pick a fight with the elite schools where anti-war and anti-Bush sentiments are very widespread among students and faculty. (Perhaps we should view Solomon as a case of the Powell Doctrine, which permits the military to wage war only when it enjoys overwhelming supremacy!) DOD's refusal to clarify its own policies under Solomon, moreover, created needless uncertainty, contention, and, now, litigation. At the same time, its opaque regulatory process, which seems to permit the government to cut off funds without affording the schools administrative review, raises serious due process questions. For all these reasons, a legal test of the Pentagon's policy is welcome.

Still, one is struck by ironies in the law schools' litigation positions -- as to both Solomon and their own interviewing policies. Consider how the schools define merit. Only a few months before suing DOD on the ground that Solomon prescribes an alien, illiberal conception of merit, the schools advanced a different view. In Grutter v. Bollinger, they persuaded the Supreme Court that the very same attributes that the schools now say bear no relation to merit can be used to discriminate against white and Asian applicants. It seems odd for the schools to insist that they may define merit in a way that disadvantages white, Asian, and indeed straight applicants (if schools deem other minorities or gays "diversity-enhancing") but that the military may not define merit in a way that disadvantages gays. Just as the schools cite pedagogical diversity, DOD cites combat effectiveness. Although neither of these claims is convincing, the relevant point here is that the schools, in the name of high principle, are defining merit as they choose and asking the courts to defer to their institutional autonomy and expert judgment in the matter. At the same time, they deny the same deference to the institutional claims of the military.

A second irony concerns the schools' position on the government's threats to cut off federal funding as a means to enforce its own nondiscrimination policy. When the Reagan administration opposed ending Bob Jones University's tax-exempt status and its access to federal educational loan funds, the law schools did not exactly fly to BJU's defense. Indeed, many of them were indignant about government policies that in effect subsidized an institution that discriminated against blacks as a matter of (in BJU's view) religious principle. Nor do the law schools now oppose fund cutoffs under Title VI of the Civil Rights Act of 1964 to prevent discrimination by private grantees. (Politicians of all ideological stripes use cutoffs to threaten practices they don't like; Ted Kennedy, for example, has proposed to bar funds to colleges with "early decision" policies). Given this background, the law schools' claim that Solomon constitutes an illegitimate, indeed unconstitutional, effort to enforce an official orthodoxy seems a bit inconsistent.

But whatever one thinks of "don't ask, don't tell" (again, I oppose it), Congress duly enacted it after focused debate. Both the Clinton and Bush administrations ratified it. And the federal courts upheld it. None of this legal legitimation is true of race, sex, or other forms of discrimination that can cause fund cutoffs. The schools' position on the use of grant funds to enforce public policy, then, seems to depend not on whether the policy is legal (as "don't ask, don't tell" is), but on whether the schools happen to favor it. Varying positions on fund cutoffs depending on whose ideological ox is gored may be a common political tactic, but it is hardly setting the moral example that schools say in their pleadings is one of their chief raisons d'etre.

Another moral irony of the lawsuit is that the pleadings do not identify the schools opposing DOD's policy, but instead use FAIR's anonymity to conceal them. According to press accounts, FAIR has done so in order to protect the schools' federal funding. (Some scholars and students, including many at Yale, have come forward and sued in their own name). Whether or not this anonymity weakens their legal position (the government has challenged FAIR's standing), it does seem to mock a moral imperative -- to stand up for one's rights and risk the consequences-that law schools should be teaching their students. Since it would be clearly unconstitutional for DOD to pick and choose among schools in cutting off funds according to which schools had opposed their policy or sued, the actual risks of self-identification in the lawsuit seem minimal.

In 2004, a federal appeals court reversed the district court, ruling that DOD's reading of Solomon violates the schools' First Amendment rights by coercing speech and interfering with their expressive integrity. The government may appeal, but let us assume that the schools are right on the law -- that their interviewing rules as applied to the military do not violate Solomon (now amended to require "equal access" by recruiters) or that the First Amendment prevents Defense from sanctioning them. A key question remains: Should law schools have such policies in the first place?

Virtually all the schools (and the AALS) long ago answered affirmatively, but I have my doubts. I strongly favor barring discrimination against gays and protecting academic autonomy in the face of political pressures. But law schools should be dedicated to a third norm, too, one that would discredit their position on this question. As a matter of principle, law schools should treat their students as mature individuals who have absorbed enough education, legal and otherwise, to assess the evidence and make their own choices among employers without needing to be "protected" by the schools.

Why should the schools screen employers' practices for some of the most critical and well-informed young adults in the country? Can't students make up their own minds on this? What vision of intellectuality, character, and maturity do the schools convey when they relieve students of their duty as autonomous adults and citizens to make their own moral choices? Given the schools' vaunted quest for diversity, is it not inconsistent for them to discourage students from hearing a world view -- opposition to gays in the military -- that was resoundingly endorsed by a democratic (and Democratic) Congress, affirmed by administrations of diverse ideological stripes, upheld by the courts, and preached by some of the great religions to which many of the students subscribe? How much liberality and subtlety of mind do law schools exhibit when their interviewing rules treat all versions of that world view as a single species of invidious homophobia to be indiscriminately condemned-regardless of whether it proceeds from the kind of blind hatred that murdered Matthew Shepard or from ethical traditions or prudential concerns shared by many thoughtful, morally scrupulous people?

In truth, the law school interviewing policy is not meant to be evenhanded. Rather, the policy is designed to make a political and moral statement by placing extra (small, as a practical matter) obstacles in the path of those students who wish to interview with certain employers whose practices offend the schools. To see why this differential treatment is inconsistent, consider an analogy. Suppose the Acme Corporation made it a bit more difficult for black applicants, but not for others, to arrange job interviews-say, by making blacks call an additional number or travel farther. Acme could not legitimately defend this practice on the ground that it did not discriminate against black applicants but instead merely denied them the benefit of the faster-track option available to other students. This analogy, I think, indicts the schools' interviewing rule a fortiori. After all, it discriminates against an employment practice that is perfectly legal and reflects a hard-won political and moral consensus, although one that I do not share.

The schools should allow their placement resources to be used on an equal basis by all employers whose policies with regard to sexual orientation are legal in the jurisdictions where their lawyers work, so long as they disclose those policies and certify their legality. The issue is not what the schools think about the military's position on gays-the schools and AALS have made that very clear -- but how their students view it. A school's moral and pedagogical duty to its students is to cultivate their capacity for independent thinking, explain its own view (if it has one) on "don't ask, don't tell" -- and then get out of the way. The students' duty is to listen carefully -- and then make their own decisions.