Law schools that challenged the Solomon Amendment, a federal law passed in 1994 that eliminates federal funding to universities that deny equal access to military recruiters, tried to hide behind noble motives. The Forum for Academic and Institutional Rights, for example, claimed that its support of academic freedom and nondiscrimination required law schools to bar military recruiters from campus because of the military's discriminatory "don't ask, don't tell" policy on gays.
This week, the U.S. Supreme Court rejected the lawsuit unanimously. As the opinion written by Chief Justice John Roberts noted, the Solomon Amendment doesn't, in any way, limit universities' rights to protest "don't ask, don't tell." If universities cannot abide by the policy, Roberts wrote, they are "free to decline the federal funds."
But you see, this lawsuit was all about letting academia have it both ways. Clearly the law-school litigants believe they have a constitutional right to thumb their nose at military policies, while burning through tax dollars paid by voters who, as a rule, hold those who serve in the military in high esteem — and no doubt respect soldiers more than they respect lawyers.
It's so, well, lawyer-like for academics to argue that they have deeply held convictions — but that doesn't mean they should have to pay any consequences for them.
Besides, where is the academic freedom in barring recruiters from campus? Freedom should mean that military recruiters have their platform. Students are free to enlist, if they so choose, or not enlist if they do not. Critics are free to protest against Pentagon practices. It's called a free exchange of ideas.
(This may be a good place to mention that I think "don't ask, don't tell" is a foolish policy. I believe the military should welcome gays, that it is wrong-headed to assume gay officers will misbehave and that existing rules can address any wrongful actions of any gay or straight officers or enlistees.)
Think about it. If the Bushies wanted to bar Muslim recruiting on campus, academics would be hollering — despite Islam's hostility toward homosexuality. The big dif here is that fellow academics have decided who cannot speak freely on campus.
Pentagon rules discriminate against women by barring all women from serving in certain combat positions. I wondered: If ivory-tower elites truly oppose discrimination, why didn't they challenge the Solomon Amendment on military policies that discriminate against all women?
Plaintiff Michael Rooke-Ley, a law prof at Santa Clara University, answered that military recruiters will interview females, but they won't interview gay students. I reply that the military will interview gay law students who don't announce that they are homosexual. Rooke-Ley believes no institution should expect applicants to deny a fundamental fact about themselves. You can't argue that it is acceptable to discriminate against Jews because someone can deny being Jewish, he said. The same goes for homosexuality.
Rooke-Ley sees the lawsuit as a way to fight "hypocrisy on campus" — that law schools can't preach against discrimination, then allow recruiters that discriminate.
I see the suit itself as the height of hypocrisy. In a truly free academic environment, students would accept the presence of those with whom they disagree, while exercising their right to speak against them. In barring the military, law students and faculty are working to marginalize not only recruits, but also any students who support military policy. It's not enough to protest recruiters. Only a solid ban will do to let students interested in military service understand that, in the university, they are the freaks.
They don't care that, to the extent that this is a free country, you can thank the military.