“The Irony of All of This, Is that They Failed to See the Irony of All This.”[1]

An Analysis of the Struggle Between American Law Schools and the Recruiters of the Department of Defense and the Judge Advocate General Corps. 

By: Collin F. Delaney, Editor*

*In the interest of full disclosure, the author accepted an offer to serve in the Air Force Judge Advocate General Corps’ Summer Intern Program in May-August of 2007. The views expressed in this article are solely those of the author.

I: Dear Abby

It was none other the iconic American advice columnist Dear Abby who noted, “fighting fire with fire only gets you ashes.”[2]. Despite the truth to Dear Abby’s statement, much of the United States’ social policy fails to heed this advice so readily accessible in our daily newspapers. Centuries of racial discrimination in this nation was perplexingly countered with affirmative action and other forms of racial quotas. Apparently, lawmakers felt that implementing prejudicial policies would be the best way to curb discrimination. <p>

This “fire with fire” countermeasure has also seen implementation in countless numbers of our nation’s law schools. The controversies surrounding the U.S. Armed Forces policy of “Don’t Ask, Don’t Tell” toward homosexuals are well known. In response to this, beginning in the 1980s, U.S. law schools began banning  Department of Defense (“DoD”) representatives from their campuses. [3]. Somehow, banning an organization because they banned a class of citizens did not seem at all odd to the respective law school administrations. To quote Jon Stewart, “The irony of all of this, is that they failed to see the irony of all of this.” [4].<p>

II: Cutting Infants in Half Was Just the Beginning

The true battle between DoD recruitment efforts and law school administrations began in 1990. In 1990, the Association of American Law Schools (“AALS”) placed sexual orientation into its non-discrimination policy; following the policy was a mandatory facet of AALS membership. [5]. The conflict between AALS law schools and the DoD arose from the DoD’s efforts to recruit for the respective branches of the Judge Advocate General’s Corps (“JAG Corps”), our nation’s attorneys in uniform. The “Don’t Ask, Don’t Tell” policy of the DoD ran contrary to the non-discrimination policy of the AALS. It seemed this town was not big enough for both of these acronym-loving groups. [6].

Enter Solomon. While it would have been far more dramatic had it been the wise King Solomon from the Hebrew Scriptures [7], one cannot be too disappointed with U.S. House Representative Gerald Solomon (“Rep. Solomon”). Rep. Solomon introduced a bill that eventually became the Solomon Amendment [8], mandating, in part, that military recruiters not be denied access to campuses lest the entire university be cut off from funding derived from the Departments of Labor, Health and Human Services, Education, et al. [9],[10]. In short, the Solomon Amendment codified the familiar pre-adolescent axiom of “my ball, my rules,” though the stakes increased with of billions of dollars of federal aid.

III: Cry “Havoc” and Let Slip the Dogs of Litigation [11]

When one passes a law that directly challenges an organization such as the AALS, the smart money says there will be a lawsuit filed, tout de suite. The opening salvo came in the form of the Supreme Court’s grant of certiorari to the Third Circuit case of Forum for Academic & Institutional Rights(FAIR) v. Rumsfeld. [12]. Despite FAIR’s vociferous First Amendment Claims, Chief Justice Roberts noted that the Solomon Amendment regulates conduct and not speech. [13]. Further, the Court found that “a military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message.” [14]. The Court reversed the Third Circuit’s decision unanimously, finding the Solomon Amendment constitutional. [15].  Law schools now must keep their doors open to military recruiters or face losing considerable federal funding.

While further caselaw exists challenging facets of the Solomon Amendment, the scope of this article cannot accommodate their analysis. For those interested, see SAME v. Rumsfeld [16] and Burt v. Rumsfeld [17].

IV: Forbear to Judge, for We are Sinners All. [18].

Most first year law students have dealt with the frustration of learning 
that they would not be taught “the law” but rather instructed on how “to think like a lawyer.” This author finds it compelling that while all 1Ls make this impressive pedagogical leap, law schools refused to allow law students to think for themselves when it came to the matter of military recruitment.

While “Don’t Ask, Don’t Tell” is a policy with considerable flaws, there is hardly a uniform consensus on the matter. Despite this, AALS affiliated law schools arrogantly and unilaterally decided the matter was settled. Law students, in this author’s experience, tend to be reasonably bright and capable individuals. Would they not be able to use their lawyer-esque thinking abilities to decide if they would entertain an interview from the JAG Corps or other organization? Should a law student feel “Don’t Ask/Don’t Tell” morally objectionable, it is entirely within his or her right to abstain from the interview. If a law student objected to the policy yet still felt a duty to serve the nation in a military capacity, should this option not remain open to him or her? It is surely a difficult decision for some, but one that must be left to the individual.

As Justice Breyer noted in the oral arguments of Fair v. Rumsfeld, should universities and law schools also have the right to exclude employers who promote affirmative action or racial diversity when the school does not agree with such policies? [18]. Where does  law school administration fiat end and personal choice begin once one descends down this slippery slope?

This author finds this particular issue timely in light of the developing lawsuit against the famed New York City firm of Sullivan & Cromwell, LLP. [19]. The suit, filed in the New York Supreme Court, alleges discrimination, abuse, and bias arising from the homosexual orientation of Aaron Charney, an associate with the firm. Should the court find for Charney, one wonders if law schools will band together and deny students the opportunity of On Campus Interviews (OCI) with the prestigious firm. This author truly doubts it. 
Consider further the countless white-shoe law firms who have been sued for sexual harassment by female staff and associates. This author struggles to find any OCI “blacklist” at any AALS affiliated law school. 
Chief Justice Roberts could not help but note the flagrant hypocrisy of schools that banned military recruiters only to later accept the terms of the Solomon Amendment. The Chief Justice stated that law schools chose to send the message “we believe in [the nondiscrimination of homosexuals] strongly, but we don’t believe in it, to the tune of $100 million.” [21].

V: We Are Not Little Children, And We Know What We Want. The Future is Certain, Give Us Time to Work it Out. [22].

It is the job of the law school to educate their students to become intelligent and capable attorneys, not to play moral arbiter when it comes to potential employers. Despite the occasionally despicable corporations that the nation’s top law firms represent, this author could not find a modicum of administrative protest against  firm’s placement at OCI. The New York University School of Law has led some of the most rabid and polemic protests against JAG Corps recruitment, yet there is hardly a hiccup when former Enron counsel, Vinson & Elkins, comes trolling for summer associates. As noted previously, should Sullivan & Cromwell be found to have discriminated against homosexuals, this author expects the silence from law school administrations to be deafening.

As repeated student protests against the JAG Corps at our nation’s top law schools have reflected, those students who oppose “Don’t Ask, Don’t Tell” clearly have the voice to express their discontent. It is insulting that there needs to be Federal legislation strong-arming law schools into allowing military recruiters on campus. Law students are an educated and outspoken lot; we are more than able to make these decisions for ourselves. Additionally, as noted by Justice Breyer, the remedy for issues like discrimination is more speech, not less. [23]. A decision to combat discrimination with further discrimination is setting the stage for a true negative-sum game. Never has the advice from a Dear Abby column rang more true than in this matter — it would be a shame to ignore it.

[1] Jon Stewart & The Writers of the Daily Show, America (The Book): A Citizen’s Guide to Democracy Inaction (reprint ed., Warner Books 2006).

[2] The Quotations Page, available athttp://www.quotationspage.com/quote/36288.html    (last visited Feb. 19, 2007).

[3] Major Anita J. Fitch, The Solomon Amendment: A War on Campus, 2006 Army Law. 12, 12 (2006).

[4] Stewart, supra note 1.

[5] Patrick Smith, Note, Solomon’s Mines: The Explosion Over On-Campus Military Recruiting and Why the Solomon Amendment Trumps Law School Non-Discrimination Policies, 79 St. John’s L. Rev. 689, 691-693 (2005).

[6] Id., at 692.

[7] See generally: Shira Schoenburg, Solomon, available at:http://www.jewishvirtuallibrary.org/jsource/biography/Solomon.html     (last visited Feb. 19, 2007).

[8] 10 U.S.C.A 983 (West & Supp. 2005).

[9] Id.

[10] See Fitch, supra note 3 at 13 & Smith, supra note 5 at 697-699.

[11] William Shakespeare, Julius Caesaravailable athttp://www.online-literature.com/shakespeare/julius_caesar/   (last visited Feb. 19, 2007).

[12] 390 F.3d 219 (3d Cir. 2004), rev’d, 126 S. Ct. 1297 (2006).

[13] 126 S. Ct. at 1307.

[14] Id. at 1312.

[15] 126 S. Ct. 1297.

[16] 321 F. Supp. 2d 388 (D. Conn. 2004).

[17] 354 F. Supp. 2d 156 (D. Conn. 2005).

[18] William Shakespeare, Henry VI: Part 2available athttp://www.online-literature.com/shakespeare/henryVI2/   (last visited Feb. 20, 2007).

[19] Fitch, supra note 3, at 17 (citing Transcript of Oral Argument at 3-4, Rumsfeld v. Forum for Academic & Institutional Rights, No. 04-1152 (U.S. argued Dec. 6, 2005), available at:http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-1152.pdf  .

[20] See generallyAaron Charney Archivesavailable at:http://www.abovethelaw.com/aaron_charney/   (last visited Feb. 20, 2007); Julie Creswell, Gay Lawyer Suit Accuses Firm of Bias, N.Y. Times, Jan. 15, 2007, available athttp://select.nytimes.com/gst/abstract.html?res=FA0B13FE3A540C748DDDA80894DF404482   (last visited Feb. 20, 2007).

[21] Fitch, supra note 3, at 18 (citing Transcript of Oral Argument at 38-39, Rumsfeld v. Forum for Academic & Institutional Rights, No. 04-1152 (U.S. argued Dec. 6, 2005), available athttp://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-1152.pdf  .

[22] The Talking Heads, The Road To Nowhere, on Little Creatures (Warner Brothers 1985).

[23] Fitch, supra note 3, at 18 (citing Transcript of Oral Argument at 38-39, Rumsfeld v. Forum for Academic & Institutional Rights, No. 04-1152 (U.S. argued Dec. 6, 2005), available athttp://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-1152.pdf .