"Rum, Sodomy, and the Lash": What the Military Thrives on and How It Affects Legal Recruitment and Law Schools

I. OPENING REMARKS

MS. GREER:

Winston Churchill once said that "Naval Tradition is just rum, sodomy, and the lash." I'm Sharra Greer. I'm the director of Law and Policy for the Service Members' Legal Defense Network. We're a national nonprofit dedicated to ending "Don't Ask, Don't Tell" and related forms of discrimination. We're a legal services lobbying and litigation organization. Today's panel is an examination of FAIR v. Rumsfeld; (1) what law schools, law students, and the legal community can do in the wake of the decision to continue the commitment to nondiscrimination; the efforts to end the discrimination within the military; and a discussion about the relationship that could be, should be, and does exist between the law students, the law schools, the military, and the military legal community.

Today we have an esteemed panel. With me is Warrington Parker. He is a partner at Heller Ehrman LLP. Prior to that, he was an assistant United States attorney. He was also a key part of the FAIR litigation team. Next to Mr. Parker is Professor Beth Hillman. She is a professor of Law and the Director of Faculty Development at Rutgers--Camden. She is also an expert on the U.S. Military Justice System, a former Air Force officer and the author of Defending America: Military Culture and the Cold War Court-Martial, (2) a book on military justice. Professor Hillman previously taught history at the Air Force Academy and at Yale University. We also have with us Professor Diane Mazur, who is a professor of law at the University of Florida. Professor Mazur writes in the area of civil military relations under the constitution and is also a former Air Force officer. She's the author of many articles in this area, including "A Blueprint for Law School Engagement with the Military." (3)

Each panelist will make their remarks and then we will open the floor to questions. I hope this will be a good discussion. So, without further ado, I will turn things over to Warrington Parker.

II. FAIR v. RUMSFELD AND THE SOLOMON AMENDMENTS

MR. PARKER:

On March 6, 2006, the U.S. Supreme Court upheld the constitutionality of the Solomon Amendment in FAIR v. Rumsfeld, (4) a case brought by the Forum for Academic and Institutional Rights (FAIR), the Society for American Law Teachers (SALT), and several individual plaintiffs. FAIR is an association of law schools and law faculties whose members have policies opposing discrimination based on, inter alia, sexual orientation. (5) FAIR contended that the Solomon Amendment (6) violates the First Amendment rights of its members by conditioning federal funds to universities on its members' affirmative support of military recruitment on campus--recruitment that blatantly excludes openly gay, lesbian, and bisexual law students. The Supreme Court decided that law schools' and law faculties' First Amendment free speech rights were not violated by the Solomon Amendment because law schools and faculties remain free to voice their opposition to the military's discriminatory "Don't Ask, Don't Tell" policy.

The Solomon Amendment, named for Rep. Gerald B.H. Solomon, R-N.Y., was first enacted in 1994 and denied Department of Defense funding to any schools that prohibited the military from recruiting on campus. (7) In 1996, Congress extended the law's reach to include funding from the Departments of Education, Labor, and Health and Human Services. (8) This second Solomon legislation put law schools at risk of losing federal financial aid monies that are critical to many students. The new law forced schools to choose between protecting students who are on financial aid from economic and educational hardship and protecting students who are gay or lesbian from discrimination. The Solomon Amendment was revised again in 1999, when Rep. Barney Frank, D-Mass., pushed through an exemption for federal monies used for financial aid, (9) and again in 2001, when alterations pushed by the Republican leadership on the House Armed Services Committee made it so that an entire university would lose its federal funding if any of its constituent schools blocked access to recruiters. (10) This alteration significantly strengthened the Act, as the military had sought access mostly to law schools, which receive little in federal money, unlike medical schools, which are not usually targeted by recruiters.

The Solomon Amendment created, as the law schools viewed, a clash between the nondiscrimination policies of the law schools and the military's policy regarding gays and lesbians. In response, many law schools permitted the military to recruit on campus but asked that they recruit at locations separate from the respective law schools. For example, the University of Southern California (USC) asked the military to recruit at the Reserves Officers Training Corps (ROTC) building located on the University's main campus instead of recruiting with the other legal recruiters.

For years, the military accepted these accommodations because they maintained strong recruiting success rates for their Judge Advocate General's (JAG) Corps. In fact, the military would often write letters to elite law schools such as New York University Law School noting that it had so many applicants that it had to deny employment positions to many qualified candidates. Even at USC, there was substantial turnout for JAG positions despite the modified recruiting format.

After 9/11, the military began to insist that they be afforded the same access enjoyed by other recruiters. Though only an anecdotal, qualitative, visceral reaction drove this demand, the military began to insist it was necessary. Law schools came together and discussed alternative arrangements consistent with their nondiscrimination policies. The military, however, said they would discuss alternatives only at the same time that the government considered the law schools' federal funding. This debate continued until 2003, when an association of law schools and law professors formed FAIR and sued the government, claiming that the Solomon Amendment violated the First Amendment.

First Amendment doctrine grants several freedoms including: (1) the right to be free from compelled speech; (2) the right to speak and not to host speech; and (3) the freedom to associate. (11) FAIR made three arguments based on First Amendment doctrine against the Solomon Amendment requirements. FAIR also argued that the "unconstitutional conditions doctrine" is implicated here because the Solomon Amendment places the unconstitutional conditions of compelled speech and compelled association in return for federal funds.

First, because the Solomon Amendment required law schools to serve military recruiters with services that are equal in quality and in scope to the services that the schools provide to employers who do not discriminate, the government is compelling the law schools to promulgate speech that they vehemently oppose. (12) The services being required of the law schools are essentially communicative actions such as: distributing, posting, and printing literature; making introductions; and sponsoring private forums for exchange of information. (13) Forcing law schools to carry the military's inherently discriminatory message through these communicative actions is a form of government compelled speech that is against the First Amendment.

Second, FAIR argued that the Solomon Amendment deprived the law schools of their right to speak by essentially forcing them to cancel or minimize their antidiscrimination policies. (14) The First Amendment protects the right of law schools to convey the messages they choose and not to host speech that directly contradicts or eliminates those messages. Ironically, one of the main cases supporting that argument is Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston. (15) In Hurley, members of Boston's GBLT community were denied permission to march in the St. Patrick's Day Parade organized each year by a veteran's group. (16) The veteran's group argued that since it was their parade and since the event was privately organized, it was their right not to be affiliated with the sort of speech that would be conveyed by the GBLT group. The Court agreed, holding that the veteran's group was a First Amendment speaker and the selection process for who would march was essentially First Amendment speech. (17)

Third and finally, FAIR argued that the Solomon Amendment required their respective law schools to collaborate with military recruiters in promoting an unjust message. (18) Thus these law schools had a right to deny full access to their communities from associations who did not share their views.

FAIR was unsuccessful in the District Court, (19) successful in the Third Circuit, (20) and thoroughly unsuccessful in the Supreme Court. The Court held that the law schools were not being asked to promulgate speech. Compelled-speech violations under the First Amendment occur when the speaker's own message is affected by the speech it was forced to accommodate. This situation does not amount to promulgation of military speech because the law schools remained free to voice their opposition to military recruiting policies. As a result of the FAIR decision, it is possible to urinate on the American flag, (21) but it is not possible to exclude military recruiters as a form of protest. Under the Court's rationale, Congress can tell law schools not to exclude the military recruiters, which is akin to telling law schools not to post a sign saying "No Whites Need Apply." With the Rumsfeld v. FAIR decision, law schools would have to articulate reasons other than opposition to "Don't Ask, Don't Tell" to justify any decisions to deny military recruiters placement locations on the law school campus.

The Court said that the second argument, regarding the hosting of speeches and the right to speak, was not of merit because nothing was being hosted and no confusion existed between the military's recruiting purposes on campus and the law school's anti-discrimination message. Unlike in Hurley, where a parade has a genuine expressive quality, law school recruiting services--such as recruiting emails, notices, receptions, and interviews--are not expressive by nature. Prior to the Solomon Amendment, law schools showed their disagreement with the military's policy with conduct such as treating the military recruiters differently from other recruiters. The Court held that such actions alone are not expressive, but instead are pure conduct with little speech content.

Finally, the Court held that the right of association had little meaning in this context because there was no interference with the law school's mission. Unlike in Boy Scouts of America v. Dale, (22) in which the Boy Scouts freedom of expressive association was violated by a state law requiring them to accept gay members, here the military was not insinuating itself as a member of the law schools. (23) The Court held that the military recruiters were still outsiders entering law schools with the minimal purpose of recruiting students, not becoming members of the schools expressive association. (24)

With the "unconstitutional conditions doctrine," federal funding conditions are not unconstitutional if they can be directly imposed by Congress. Here, because Congress is constitutionally able to directly impose the Solomon Amendment's access requirements upon law schools (because there is no violation the First Amendment), the Solomon Amendment's conditions for federal funds were not unconstitutional. (25)

The Supreme Court has seemingly held with the FAIR decision that sexual orientation discrimination exists only in the grossest sense, such as when Colorado passed a statewide initiative to deprive equal rights to gays and lesbians. (26) Had other discriminated groups been involved here, this decision would have come out much differently. Had the military, for example, discriminated on the basis of race or gender, the court would have almost certainly allowed law schools to exercise their First Amendment rights by excluding military recruiters.

III. MILITARY NEEDS AND MILITARY LAWYERS

PROF. HILLMAN:

The first part of the title of our Panel is "Rum, Sodomy, and the Lash." Sharra Greer already provided some background about the history of the military and its discrimination related to homosexuality. It's the second part of the panel title that I'm going to talk about now: "what the military thrives on and how it affects legal recruitment in law schools," especially "what the military thrives on." I want to focus on the military itself in order to build a larger context for understanding these issues. I think our efforts to bring equality into military service, and to bring dignity to gay and lesbian citizens and service members, should take into account the realities of military service. We should understand the essential mission of the armed forces, what the military is all about, and the demographic changes that have already taken place in the Armed Forces over the course of thirty years of a volunteer military.

I also want to suggest that …

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Publication information: Article title: "Rum, Sodomy, and the Lash": What the Military Thrives on and How It Affects Legal Recruitment and Law Schools. Contributors: Not available. Journal title: Duke Journal of Gender Law & Policy. Volume: 14. Issue: 2 Publication date: May 2007. Page number: 1143+. © 2009 Duke Journal of Gender Law & Policy. COPYRIGHT 2007 Gale Group.

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