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Point/Counterpoint: Should military recruiters be allowed access?


Photo
Illustration by Holly Randall
By Dan Post and Jonathan Riches
Arizona Daily Wildcat
Tuesday, February 22, 2005
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While the UA still allows them, a consortium of 26 law schools has been denying military recruiters access to campus as a response to the military's "don't ask, don't tell" policy toward gays. Should schools be allowed to keep recruiters off campus?

Law schools have right to oppose a government policy without losing funding

Law schools around the country determine who is allowed to recruit on their campuses based on strict anti-discrimination policy under the guidelines of the American Association of Law Schools. These guidelines and bylaws state that professional recruiters at law schools may not engage in hiring discrimination on the basis of race, gender, religion or sexual orientation. Law schools deny access to any employer that would violate this edict.

The U.S. military, in maintaining their "don't ask, don't tell" edict concerning homosexuals, is exactly the kind of discriminatory hiring agency that law schools and the AALS ban in their employer recruitment guidelines. The "don't ask, don't tell" policy is grossly prejudiced (open heterosexuality is allowed); it is supported by bogus claims that homosexuals in the military lower morale and increase discomfort due to same-sex residence halls used in a military setting.

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Dan Post/Columnist

But Congress apparently believes in it. It passed the Solomon amendment, which forces law schools to implicitly support the "don't ask, don't tell" policy by allowing military recruiters on campus, or else lose their federal funding.

In an appropriate exercise of free speech against "don't ask, don't tell" and the military's recruiting policies, law schools represented by the Forum for Academic and Institutional Rights (a coalition of law schools around the country), have rejected this congressional assertion and have taken the government to court over Solomon.

It may be true that law schools aren't moral indoctrinators, but as the U.S. Court of Appeals for the 3rd district found in its ruling in favor of FAIR, any free speech is protected by law, not just moral speech. Accordingly, they clearly represent fairness and justice, and therefore they have the right to stand up against the unfair "don't ask, don't tell" policy without losing funding.

That court outlined precedents for the acceptance of the law schools' arguments. Importantly, the court cited the highly publicized case of Dale v. the Boy Scouts. As you may remember, the Supreme Court ruled that scouts don't have to allow someone to join their organization (in this case an open homosexual), if that person represented a view completely opposite of Boy Scouts' views. The same theory would apply to the law schools - they don't have to accept a military recruiter onto campus because they represent a viewpoint completely antithetical to the military's concerning homosexual rights.

The government's other argument against FAIR is that those who receive federal money should have to respect military recruiters. Solomon's congressional opponents (aghast at government manipulation of universities), believe that the unconstitutional conditions doctrine protects universities from Solomon's subversion.

The unconstitutional conditions doctrine allows for individuals to receive federal funding without having their right to free speech suppressed. The Supreme Court upheld this constitutional interpretation in a number of cases. Specifically, the highest federal court protected federal funding to public universities in lieu of the right to academic freedom and free speech. Academic freedom, without which public education would be a puppet instrument of government propaganda, is essential to a productive learning environment. The government should not be allowed to force hateful propaganda down the throats of law schools by threatening them with removing funding.

Despite the strength of these claims, Solomon's supporters feel they are correct: Today's military climate means that military recruiters should have top access to the best lawyers around the country, regardless of First Amendment rights. But as long as the military maintains its policy of discrimination, law schools will maintain their policy of opposition, as is their right protected by the Constitution.

Currently the UA, unlike the schools in FAIR, allows military recruiters. If it decides to join the schools in FAIR, we should support the decision.

Dan Post is an anthropology and ecology senior.
He can be reached at letters@wildcat.arizona.edu.

Law school ban is hypocritical and counterproductive

In order to quell the commotion that surrounded the debate on gays in the military, the late Sen. Barry Goldwater injected some well-needed pragmatism: "You don't need to be 'straight' to fight for your country. You just need to shoot straight." And, well, he was right. The U.S. military's "don't ask, don't tell" policy is an anachronism that is both strategically unsound and probably constitutionally inappropriate. But the issue here is not gays in the military or the underlying merits (or lack thereof) of the armed forces' "don't ask, don't tell" policy. The issue is lawyers in the military, and how, once again, academia has confused its role as educators for policymakers and ignored the real-world consequences that its actions have outside its high ivory towers.

Earlier this month, the U.S. House of Representatives approved a measure calling for the government to contest a circuit court ruling in favor of a group of law schools and legal scholars that had contested the Solomon amendment. That law, passed by Congress in 1994, requires schools that receive federal funds to provide military recruiters access equal to the access that private firms and other government agencies receive. Objecting to the Pentagon's "don't ask, don't tell" policies, the Forum for Academic and Institutional Rights, a consortium of 26 law schools who refused to be named, contested the Solomon amendment. They claim that it violates their First Amendment rights to free speech and association.

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Jonathan Riches/Columnist

There should be no real legal question about Congress' power to attach stipulations to federal funds. In fact, Congress does it all the time. For example, Congress requires that universities adhere to civil rights and gender standards as conditions on many grants. Moreover, the Supreme Court has already ruled on this spending power in Dole v. South Dakota. In that case, the court held that Congress may attach conditions to spending grants that relate to the subject of the funding with pretty broad discretion. In addition, the law schools' attempt to make their claim into a valid First Amendment issue, while creative, will probably prove unsuccessful.

Outside of the legalese, there is yet another problem with the law schools' First Amendment argument - it ignores the schools' own obligation to create an environment that respects and promotes the First Amendment rights of those within their communities. In effect, what the law schools are arguing is that as institutions they have a right to disassociate with the military because that organization has enacted a policy that is contrary to the values that they are trying to inculcate in their students - namely, resistance to discriminatory policies. Well, it must be asked: Since when did law schools become institutions dedicated to inculcating moral values of any variety? Aren't law schools supposed to be dedicated instead to empowering their students by teaching practical legal skills in an environment that respects and nourishes a diversity of viewpoints with respect to issues that should be open to mature, professional debate? What is more, what happened to the law students' own right to associate with military recruiters during campus interviews? It seems, therefore, that the law schools' freedom to disassociate with the military not only ignores their own obligations as institutions of free thought, but also somehow trumps their students' rights to associate with military recruiters.

The hypocrisy, sadly, does not end there. In a time of Abu Ghraib and Guantanamo Bay, we can all agree that the military needs the best attorneys that it can get. It is both shameful and duplicitous to at once criticize the military for not taking the appropriate steps to prevent these injustices, and then to turn around and obstruct those individuals who would be most likely to prevent future injustices from entering the military's ranks.

In all likelihood, the Supreme Court will overturn the circuit court decision that prompted this debate. And eventually, the "don't ask, don't tell" policy of the U.S. military will change. But that change will be stymied so long as law schools deny our military the brilliant, tolerant lawyers it needs to encourage reform from the inside out.

Jonathan Riches is a first-year law student. He can be reached at letters@wildcat.arizona.edu.



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