Friday, March 10, 2006

Thoughts on Rumsfeld v FAIR

The Supreme Court of the United States recently decided Rumsfeld vs Forum for Academic and Institutional Rights, Inc. A coalition of American law schools whose policies denied the US military equal access to career facilities at those schools under non-discrimination policies were fighting the Solomon Amendment. This statute (10 U.S.C. § 983) allowed the US government to withhold federal funding to those institutions who refused the military access equal to any other employer receiving the most favourable treatment. The non-discrimination policies related to the treatment of homosexuals in the military, including the "don't ask, don't tell" policy which was instituted under President Clinton.

I noticed the judgement first at Mental Meanderings in a post headed "Can't stop them now" which referenced SCOTUSblog's coverage. Somewhat irritated, in comments I pointed out to Fiona that Chief Justice Roberts had said quite the opposite -
The Solomon Amendment gives universities a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds.
I cut back a later comment on Fiona's reaction (think of the poor law schools, the impoverised creatures that they are) as the length was getting out of hand, with the intention of expanding on it here.

Despite Fiona's assertion that "all experts appear to be happy" with such a down-the-line reversal, it's hard to find them unless you're talking about people like Roger Alford who (at point 3) favour military recruitment of lawyers (and therefore probably didn't support Rummy v Fair at all). On the other hand, ACLU is certainly not happy. Nor is the Human Rights Campaign.

On's coverage, John Banzhaf, a law professor at George Washington University is quoted:
"One interesting part of today’s ruling," Banzhaf wrote in an e-mail message, "is how so many nationally known law professors at top law schools like Harvard, Yale, and Columbia (and my own law school) could have been so very wrong in putting together this lawsuit to challenge the Solomon amendment, and in asserting that the statute violated the First Amendment under no less that four different constitutional theories. Every single justice who participated — liberal, conservative, and middle of the road — ruled without exception that all of the legal theories they advanced were without merit."
Alford argues in favour of allowing recruiters to boost the degree of legal knowledge in the military in respect of the scandals such as Abu Ghraib and Gitmo citing the brief from the Judge Advocates Association. Recruiting military lawyers with a human rights background may also bring forward the day when the military itself requests removal of Article 125 of the Uniform Code - this article argues dissuading lawyers from joining JAG will not help achieve that.

As for "however will they manage without Uncle Sam's dollars" - boo hoo. Principle is fine until it costs some academic funding. I find it amusing that while independent law schools like Vermont Law School, New York Law School and William Mitchell College of Law in Minnesota were willing to forgo the funding prior to the SCOTUS ruling, the head of Stanford Law says refusing fed dollars would close Stanford's medicine and science faculties - not the law school though?

Some of these colleges have enormous endowment and alumni funds and could probably have fought it out on behalf of their poorer fellows for a while but instead have caved at the thought of forgoing the fed money which would hurt their budgets and pay. Harvard has a $25,000,000,000 endowment, for example. But that would have involved persuading the other faculties to share the pain - harder than a Supreme Court brief seemingly.

The law schools have an 8-0 decision to hide behind instead of pressing forward with their convictions. "Oh well we tried", if SCOTUS won't impose a solution too bad. As an ordinary person I used to feel bad when I discovered a service I used (like Sandals - which rescinded their hetero-only policy in 2004, but don't publicise it) or intended to use wasn't equality-friendly and avoided them where feasible (no more Domino's pizza for me) - I guess if it costs me more money or other hassle to avoid them I need not worry and can say "the best law schools in the US take the same view".

Worst of all - the law schools have yielded liberty in preference to monetary security (to invoke the over invoked Benjamin Franklin quote) when the Solomon Amendment is a possible precursor to a future No Undergrad Left Behind Act, with implications for turning student information over to recruiters. The sight of Ivy League schools sticking to their principles at a cost could have sparked a national debate on federal mandates in education, but that ship has sailed.
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