Law Schools & the Military: Don't Ask, Don't Tell, Don't Recruit

By Garnett, Richard W. | Commonweal, January 14, 2005 | Go to article overview
Save to active project

Law Schools & the Military: Don't Ask, Don't Tell, Don't Recruit

Garnett, Richard W., Commonweal

The First Amendment's protection of "freedom of speech" is about more than just speech. Courts and commentators agree, for example, that the freedom to speak includes a freedom not to speak, and that just as the government may not punish us for professing our love of country, it may not require us to recite the Pledge of Allegiance. In addition, the Constitution protects not only the sermons of a solitary activist, standing on a corner soapbox. It safeguards also our right to amplify and enrich our individual expression by associating with others, and thereby constrains government's power to revise or otherwise interfere with the rights of groups to express collective views.

These variations on the First Amendment's right of free speech were on display and in dispute in Forum for Academic and Institutional Rights [F.A.I.R.] v. Rumsfeld, a recent court decision involving military recruiting at law schools, sexual-orientation discrimination, and hundreds of millions of dollars in federal funds.

The American Association of Law Schools (AALS), like many of its members, disapproves of the armed forces' "don't ask, don't tell" policy with respect to gays and lesbians. After some schools elected (or were required by the AALS) to express this disapproval by denying military recruiters access to their career-services facilities, Congress enacted the so-called Solomon Amendment. That law denies federal funds to universities and colleges that exclude or discriminate against military recruiters. As Representative Gerald Solomon (RNY) himself put it a decade ago, "if [universities and colleges] do not like the armed forces ... that's fine.... But do not expect federal dollars to support your interference with our recruiters."

F.A.I.R. is a coalition of law schools and professors which filed a lawsuit contending that the Solomon Amendment unconstitutionally requires the schools to facilitate, endorse, and "speak" in support of the military's antigay policy, and therefore burdens their freedom of "expressive association." By a 2-1 vote, a panel of the federal court of appeals for the Third Circuit agreed.

Like the objecting law schools, the majority relied heavily on the Supreme Court's recent and controversial Boy Scouts decision. There, the justices had narrowly concluded that the Scouts could not be required by New Jersey's antidiscrimination laws to allow an openly gay Eagle Scout to continue serving as a scoutmaster. Such a requirement, the Court determined, would violate the Scouts' First Amendment rights by interfering with the group's selection process and the content of its own expression or message.

The same thing is true, the Third Circuit concluded, of the Solomon Amendment. As Judge Thomas Ambro put it, "just as the Boy Scouts believed that 'homosexual conduct is inconsistent with the Scout Oath,' the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness." And, just as the Scouts claimed that its goal was to "inculcate [youth] with the Boy Scouts' values," the law schools also state that they aim to "inculcate their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination challenge." In sum, the Solomon Amendment "affects law schools' ability to express their view-point ... that discrimination on the basis of sexual orientation is wrong" by compelling them to send the opposite message.

The Solomon Amendment and the "don't ask, don't tell" policy raise difficult questions of both policy and fairness. One can acknowledge that the military's policy excludes from the armed forces--and causes pain to--many able and committed soldiers, yet also believe that decisions about combat effectiveness are probably better made by the Pentagon than by law faculties. In addition, those who oppose the military's policy might do well to consider the concern expressed by Commonweal contributor E.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Law Schools & the Military: Don't Ask, Don't Tell, Don't Recruit


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?