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

Duke Journal of Gender Law & Policy, May 2007 | Go to article overview
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"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.

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