Two weeks ago Adam Sofen wrote me in response to my Daily Standard column “JAGs not wanted.” The story I tell in that column begins with Navy Lt. Brian Whitaker’s October 2003 visit to Yale Law School, where Mr. Sofen was a student leader protesting the visit of JAG recruiters. He wrote:
I’ve been traveling in recent weeks, and have only just now come across your piece in [your column] about the Solomon Amendment…
I graduated from Yale Law School in May. During my time at Yale, I was the co-chair of OutLaws, the gay and lesbian student group that helped coordinate the protests against military recruiters on campus. I’m pretty sure I met Brian Whitaker during his visit to the law school’s career fair; during my three years I made a point of trying to say hello to as many of the JAG recruiters as possible. Every time, I thanked them for their service to the country, and I told them that our protests weren’t targeted at individual men and women in uniform but at what we see as the discriminatory policies of top brass. I can assure you that my peers in OutLaws and throughout the law school felt the same way.
I must say, then, I took a little umbrage at your reference to Mr. Whitaker and other recruiters having suffered “the rudeness of their purported betters at Yale Law School.” The law school’s attempt to enforce its nondiscrimination policy doesn’t translate to hostility toward the military, its men and women, or its mission. Our silent protests were intended to be forceful while remaining respectful, polite, and decent. Personally, I am an openly gay YLS grad, but I’m also a flag-flying Iraq War supporter who comes from three generations of Navy men — my brother is currently serving on the USS Salt Lake City. Needless to say, I’ve always regarded military personnel with the utmost admiration.
In your view, is there any way to promote nondiscrimination and stand up for academic freedom without being accused of “hatred for the military”? We may disagree on the merits, but your charges don’t reflect my experience at Yale Law School, and they impugn the integrity of good people on the other side of a nuanced issue.
I responded to Mr. Sofen:
Adam: This is to acknowledge receipt of your thoughtful message. I think you and your colleagues at Yale should address your concerns to Congress. I think that what you and your colleagues at Yale have done to serving officers, especially now in a time of war, is wrong. So my suggestion is to spare the theatrics that suggest the visit of an officer who protects your life and liberty every bit as much as he does mine is an occasion for hanging crepe.
I wish you success in your career and hope our paths cross one of these days.
At the Volokh Conspiracy, George Mason University Law Professor David Bernstein makes the same point in greater detail with several related posts: “Congress’s responsibility for ‘Don’t ask/don’t tell” (and the other posts noted at the conclusion).