BY TUNG YIN
In the wake of Harvard Law School’s decision to allow JAG on campus (for now) because of the Solomon Amendment (which bars universities from receiving federal funds if they do not allow the military to recruit on campus), I have been wrestling with the implications of the anti-Solomon Amendment position. The easy part of the position is the view that law schools should feel free to decide for themselves whether to allow JAG to recruit on campus without having to risk forfeiting federal funds.
But in the absence of the Solomon Amendment, law schools would pretty much have to exclude JAG from interviewing on campus, because the American Association of Law Schools (AALS) by-laws state: “A member school shall communicate to each employer to whom it furnishes assistance and facilities for interviewing and other placement functions the school’s firm expectation that the employer will observe the principle of equal opportunity.” (Section 6-3)
JAG does not observe the principle of equal opportunity as set forth by the AALS, due to the military’s discrimination against gays. Therefore, the implication is that law schools should furnish neither assistance to nor facilities for interviewing by JAG. (I should add at this point that I, admittedly someone who has never served in the military, believe that the ban on gays is foolish, as well as demeaning and hurtful to the numerous gay Americans who are patriotic enough to join the military. Back in 1992, I met Keith Meinhold, who at one point was the only homosexual soldier who could not be discharged from the military because of a court order in his favor; Meinhold was a fantastic soldier who had won honors and who was training other soldiers, yet the military was trying its best to get rid of him!)
What I struggle with is how far this principle of non-assistance extends. Is it simply that the law schools do not want to sully their buildings with the presence of the JAG officers who are part of a entity that engages in such ugly discrimination?
Or does it run deeper? That is, is JAG such an evil organization due to the military discrimination that, as a law professor, I should refuse to write letters of recommendation on behalf of students who would like to work for JAG?
Or should I be willing to write letters of recommendation, but only after trying to talk students out of applying to JAG?
I have some trouble understanding the point if it is merely to keep JAG off law school property. All we are doing in that instance is making it more difficult for our students to get employed. I understand the symbolic nature of keeping JAG off law school property as a statement of disapproval of the ban on gays in the military, but is such a symbolic statement justified when compared against the obstacles that we place in the path of our students to get hired? We could just as effectively put up the placard that we do right now when JAG interviews on campus, expressing our disagreement with the military policy. (I realize there is an argument that the placard consists of compelled speech for First Amendment purposes, but I am writing here as to what a law school might do volitionally in the absence of the Solomon Amendment.)
On the other hand, the notion that we should simply refuse to help students get jobs with JAG altogether has a nice coherence to it, but it inevitable involves substituting our (i.e., law schools’) view of “acceptable” employment for that of the student, and to block students from getting jobs with an organization that acts distastefully in our view — but legally. (Again, I am sympathetic to the argument that the military policy should be struck down as unconstitutional, but courts have yet to be persuaded.)
And if it is acceptable for us to impose our views of acceptable employment on to our students by deciding which employers we will help students get jobs with and which we won’t, does that mean that a devoutly Catholic law professor who believes that abortion is murder and a sin should refuse to write a letter of recommendation for a student who wants to work for NARAL?
I don’t ask these as rhetorical questions. I am generally uncertain as to what message (beyond mere disapproval of the ban on gays in the military) that we seek to send when we try to block JAG from interviewing on campus, and how far that message extends. This is particularly true given that I’ve already written a number of letters of recommendation on behalf of Iowa students who applied for JAG positions.
Tung Yin is an Associate Professor at the University of Iowa College of Law.