Law profs can fool most of the people most of the time

In this Washington Post op-ed, Kent Greenfield, a professor of law at Boston College, protests the government’s use of the Solomon Amendment, which gives the Department of Defense the right to cut off federal funds to universities that prohibit the military from recruiting their students. Greenfield’s cloying piece casts the law schools as defenders of the principle of non-discrimination. This pose might be more credible if the same law schools didn’t discriminate on the basis of race in their admissions process.
Nonetheless, Greenfield assures us that law schools deeply believe that their openly gay students should be able to serve in the military while remaining openly gay. Although I respect this belief, I also respect the deeply held belief of our military that it won’t be as effective a force if it abandons the “don’t ask, don’t tell” policy. And I respect the belief of our democratically elected Congress that law schools, whatever political disagreements they may have with the military, must grant the military the same rights they grant other employers when it comes to recruiting, if they want to receive federal money.
By contrast, I don’t respect Greenfield’s dishonest concluding argument — “we would not pretend to tell the government how to run the military. The military should not be telling us how to run law schools.” In reality, of course, this entire dispute arises because law schools are, in a sense, telling the government how to run the military. They are doing so in the same sense that the military is now telling law schools what to do. The law schools are saying that the military should change its employment practices, while the government is saying that law schools should change their practices with respect to access by recruiters. Indeed, the law schools are either taking a position on the effect that openly gay recruits will have on our military capabilities (an issue they are unqualified to address) or else they are recklessly calling for a change in policy without any regard to what this will mean to our national security. Which is it?
Judging by this op-ed, and the law suit Greenfield’s organization has filed against the Defense Department, law professors must think that the body politic is pretty gullible. And, having prevailed in the affirmative action controversy, who can blame them?


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