In the new issue of the Weekly Standard, George Mason University Law School Professor Peter Berkowitz looks at the law school litigants in the case giving rise to the Supreme Court decision in FAIR v. Rumsfeld: “U.S. military 8, elite law schools 0.” Professor Berkowitz writes:
Roberts’s opinion does give rise to, and leaves unresolved, one nonlegal but rather large and disturbing question: How could so many law professors of such high rank and distinction be so wrong about such straightforward issues of constitutional law?
The losing party, the Forum for Academic and Individual Rights (FAIR), is an association of 36 law schools and law faculty, only 24 of which are willing to be named publicly. In addition, groups of faculty members from many of the leading law schools in the land filed separate friend of the court briefs on behalf of FAIR (alone among law faculty, members of George Mason filed a brief–in which I played no role–supporting the constitutionality of the Solomon Amendment). These included a friend of the court brief signed by 40 Harvard Law School professors–including Dean Elena Kagan in her capacity as professor of law; University Professor Laurence Tribe; and University Professor Frank Michelman. The brief was prepared under the supervision of counsel of record Walter Dellinger, professor of law at Duke University and former solicitor general of the United States in the Clinton administration.
Another friend of the court brief was signed by 42 members of the Yale Law School Faculty, including Harold Hongju Koh, dean and professor of law; former dean and Sterling Professor of Law Anthony Kronman; and Sterling Professor of Law and Political Science Bruce Ackerman. In addition, a joint friend of the court brief was submitted by Columbia University, Harvard University, New York University, the University of Chicago, the University of Pennsylvania, and Yale University. Their counsel of record was Seth Waxman, a visiting professor of law at Georgetown, and, like Dellinger, a former solicitor general in the Clinton administration.
This dazzling array of eminent law professors proved incapable–even after hiring the best Democratic party legal talent money could buy–of advancing a single legal argument persuasive enough to pick off even a single dissent from the four more progressive justices on the court–Souter, Breyer, Ginsburg, and Stevens–or to provoke even a single concurrence expressing a single demurral on a single point of law from Chief Justice Roberts’s opinion.
I would add one note to the territory that Professor Berkowitiz covers in this excellent article. In addition to the poor legal arguments advanced by the elite law schools, the law schools’ harassment of the military recruiters who have visited campus over the past few years via the Solomon Amendment will continue. I saw the harassment first-hand at Yale Law School and tried to document it in “Yale v. U.S. military, round 2.”
After writing again last year about the scene I had witnessed at Yale, Adam Sofen wrote me to respond. What I saw at Yale 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 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 School Professor David Bernstein made the same point with greater detail in several related posts: “Congress’s responsibility for ‘Don’t ask/don’t tell” (and the other posts noted at the conclusion).
Kieran Lalor is an Iraq war veteran and Pace University law student. He added his personal experience to this point regarding the Solomon Amendment in a column he wrote for the New York Post last December. Lalor’s column concludes:
Under our Constitution, civilians control the military. (Legal scholars generally know this.) Why ban the military from campus when Congress passed “don’t ask, don’t tell” into law?
Rep. Nita Lowey, whose district includes my school, voted in favor of “don’t ask, don’t tell” in 1993. In March 2004, she voted to significantly strengthen the Solomon Amendment. That same month, Lowey was welcomed to campus and given the “Pioneer of Justice and Equality for Women and the Law” award.
An Army JAG recruiter who might not even support “don’t ask, don’t tell,” and is powerless to change it, is vilified and barred from campus. Meanwhile, the lawmaker who voted for the legislation is a “pioneer of equality and justice.”
The hypocrisy of legal educators who want to ban the military but remain on the federal dole