Prof. Dale Carpenter, via email, responds to my last post on the Solomon Amendment controversy:
Unfortunately, the student reporter’s story may have left you with a misimpression about the question I was responding to. He had asked me whether the law schools were pressing to exclude military recruiters _as a way to express their opposition to the war in Iraq_. I responded, “No, that’s a red herring,” and that the law schools were trying to do this for years before the Iraq war began. Of course the ongoing war is relevant to whether military recruiters should actually be excluded from recruitment at a school.
I then added that I do not believe Congress’s passage of the Solomon Amenment has anything genuinely to do with national security or recruitment needs. That has been asserted repeatedly but I’ve never seen evidence to back it up. The military has ways to recruit law students interested in the JAG Corps (including through tuition help), for example, and law students who are interested in serving are of course free to contact the military. I have never heard it suggested that the military is even close to being short on bright young lawyers.
We continually seem to graduate more lawyers than we have good jobs for. In fact, it’s my understanding that the DoD initially opposed the Solomon Amendment as “unnecessary” and possibly harmful to defense research.
By the way, I do disagree with Dean Polsby’s (and I take it your) point that the appropriate way for law schools to protest the Solomon Amendment would be to target Congress and/or federal judges and/or the Executive Branch. The schools are protesting on-campus discriminatory recruitment by the military, not on-campus discriminatory recruitment by the three federal branches. A protest aimed at the body that directly discriminates seems more narrowly tailored to me. If federal judges started refusing to hire gay clerks, or if Congress declared a policy of refusing to hire gay staffers, and both of these bodies then demanded to use law school facilities to do their recruiting, we’d have a very different issue.
Moreover, the military is not absolved of responsibility for DADT. Military leaders testified in unison for barring service by gay people back in 1993. The Joint Chiefs came down hard for the ban. Without their strong backing, it would probably not be the law today. Even now, if military leaders took a stand against the policy it might well be reversed.
The Solomon Amendment case raises many difficult issues beyond what I’ve discussed here. But I did want to address these fairly narrow questions right now.
I’m running out of town (which is why comments aren’t open), but one quick response: it’s true that the military is engaging in discriminatory recruiting, but they are doing it on orders from Congress and the President, as upheld by the judiciary. It’s not as if the JAG officers (who, as I understand it, tend to be among the most liberal members of the judiciary) can simply decline to enforce the law. To greet them with protests, catcalls, etc. (not that Dale has done this, but it’s been done) and other forms of disrespect seems to miss the point, as does refusing to cooperate with them while cooperating with, and honoring, those that established the objectionable rule. As for the Joint Chiefs’ responsibility, I don’t know what their views are today, but military leaders objected to desegregation and to women in the military, but they also strictly obeyed their civilian bosses when they were told to.
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