IN RECENT years, law schools, often regarded in our society as bastions of elite privilege and conformity, have (if we take them at their word) transformed themselves into "expressive institutions" dedicated to advancing progressive political causes. The reason for this odd turnabout has been the actions of elite law schools, including Harvard and Yale, banning military recruiters from their campusesto protest the military's "don't ask, don't tell" policy regarding homosexuals. Though the Solomon Amendment cuts off federal funds to universities that interfere with military recruitment on their campuses, a number of federal district courts have ruled that the Solomon Amendment violates the First Amendment(the issue ultimately seems headed for the Supreme Court). The strange crusade of these elite law schools, however, reflects flawed political and legal judgments and ultimately detracts from the public good.
At the outset, we should question a policy on the part of law schools that treats the United States military as some sort of hostile, alien force that fundamentally undermines the policy of these universities. The U.S. military, while flawed in some respects, provides crucial services for our nation. Our military is historically rare in that it is subservient to civilian authority, and effectively defends U.S. interests across the globe. The law schools that feel comfortable expelling the military from their premises owe their security and prosperity to the security afforded by military force.
But even more fundamentally, the law schools' decisions show a profound disrespect to the individuals of the U.S. military. While the law schools claim that they are merely enforcing their anti-discrimination policies, the message they send, by indicating that the mere presence on the military on campus fundamentally violates school policy, is one of profound disrespect.The men and women of the military put their lives quite literally on the line for the security of our country, and deserve to be treated better when they recruit on our law school campuses. The law schools stance is especially jarring when we recall that the military has come to these law schools' not to oppress gays and lesbians, but to seek competent counselors to defend the rights of soldiers and enemy combatants who might be detained under military authority.
But even more than this, however, we should question why the law schools feel they must resort to such drastic steps in order to change national policy. One of the virtues of living in a democratic nation with a military under civilian control is that civilians can change military policy. Under our constitution, the president is commander-in-chief of the military, and Congress is empowered "to make Rules for the Government and Regulation of the land and naval Forces." In the past, Congress and the president have rejected calls to change the "don't ask, don't tell" policy. If the law schools do not like the military's policy regarding gays and lesbians, there is no reason that they cannot work to that goal by trying to convince their fellow citizens of the need for such a change, rather than unilaterally refusing to associate with the military.
The law schools, however, claim that they are "expressive associations" exercising their First Amendment right to promote non-discrimination against homosexuals.In this line of argument, the law schools have been sustained by several federal courts, most recently a Third Circuit decision handed down on Feb. 7 involving Yale Law School.
Yet the constitutional arguments of the law schools are fundamentally flawed. Though the law schools argue that their anti-discrimination policies are undermined by the presence of military recruiters, it is unlikely that a reasonable person would believe that the law schools accept the military's policy simply because they allow them on their campuses. We regularly require individuals to perform obligations that they find offensive without violating individual speech rights. For example, in the 1968 case United States v. O'Brien, the Supreme Court held that free speech did not protect a person who burns his draft card, despite his opposition to the military draft. It would be strange indeed if law schools and corporate bodies generally had greater speech rights than an individual who burns his draft card.
One does not have to be a hawk to appreciate the benefits provided to America by its strong military presence. The law schools, by adopting a line of action that flies in the face of the general respect the American public has for the military and that treats the military as an enemy element that should be driven out, have made a decision that is truly puzzling.
Noah Peters' column appears Fridays in The Cavalier Daily. He can be reached at npeters@cavalierdaily.com.
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