Expressive Disassociation

As you all know by now, the Third Circuit recently decided that the Solomon Amendment (allowing the Dept. of Defense to withhold funds from institutions that refuse to allow its recruiters on campus) is unconstitutional because it violates the Yale Law School’s First Amendment right of “expressive association.” (I discussed this issue here, here, here, and here.)

The recent decision has been so well covered by the usual suspects, such as Howard Bashman and Powerline (also here and here) that I momentarily entertained the thought of not commenting on the decision. But then I realized that having little to add has never stopped me before.

First, as I’ve just discussed (here), liberals have discovered a new enthusiasm for what Alexander Bickel once famously described as the “passive virtues” of judicial restraint. Funny, but so far I haven’t seen any outraged liberal criticism of the short shrift the two Third Circuit judges in majority gave to the presumption of constitutionality of laws passed by Congress (a point mentioned by one of the knowledgeable correspondents quoted on Powerline). It would appear that liberals would like judges to be restrained only when considering challenges to legislation of which the liberals approve.

Next, in what ways would the precious associational rights of the Yale Law School (the whole school? Every student, professor, and staff member?) be compromised by hosting, for a day or two a year, someone considering willing Yale students for a job just because the interviewer’s organization doesn’t subscribe to all the tenets of the school’s nondiscrimination policy? (Ann Althouse has perceptively critizized Yale’s position here.) In any event, the issue in the case was not whether or not Yale was justified in refusing to allow Dept. of Defense recruiters, but whether or not the Defense Dept. was justified in cutting off any funds it provided to Yale if those recruiters were banned. I believe that a private university has a right, by analogy, to refuse contributions from anyone it pleases (there have been some highly publicized instances of Arab money, for example, being returned after protests were lodged), but I also believe any contributor would be a fool to continue contributing if its recruiters were barred from campus. The Third Circuit has required the Defense Dept. to be this fool.

Finally, let’s take a look at the non-discrimination policy that, according to Yale, the Defense Dept. so egregiously violates:

Yale Law School is committed to a policy against discrimination based upon age, color, handicap or disability, ethnic or national origin, race, religion, religious creed, gender (including discrimination taking the form of sexual harassment), marital, parental or veteran status, sexual orientation, or the prejudice of clients. All employers using the school’s placement services are required to abide by this policy.

Yale, of course, is not alone. Here is Harvard’s similar policy:

The Harvard Law School does not discriminate against any person on the basis of race, color, national or ethnic origin, age, gender, sexual orientation, marital or parental status, handicap, source of income, or status as a Vietnam-era or disabled veteran in admission to, access to, treatment in, or employment in its programs and activities.

The day after the Third Circuit decision Harvard re-instituted its ban on military recruiters, with Harvard Law School Dean Elena Kagan saying in a statement that “I am gratified by this result, and I look forward to the time when all law students will have the opportunity to pursue any legal career they desire.”

I believe, however, that the decision and Dean Kagan’s statement re-instituting Harvard’s ban on military recruiters raise some troubling questions. What about the associational rights of any students who might want to interview for a job in the Judge Advocate General corps or other military offices? Do they have less rights than other students? In fact, wouldn’t Harvard and Yale knowingly admitting a student, or hiring a faculty member, with such heretical views violate those institutions’ associational rights more than allowing an occasional bad person recruiter on campus? Maybe it is they who should institute a”Don’t Ask, Don’t Tell” policy with regard to the views of potential students and professors. After all, why should those unwilling to sign such a pledge be allowed to sully by association the purity of their would-be peers?

More fundamentally, note that both Yale’s and Harvard’s non-discrimination policies bar discrimination on the basis of, among other things, race, and Yale explicitly and Harvard by implication bar any recruiters who do not abide by their policies.

Or do they? Whatever can be said in defense of racial preferences, one thing that cannot be said is that employers who give preferences based on race treat all their applicants without regard to race. As I asked here,

if law schools should exclude all recruiters who refuse to treat all their students equally, shouldn’t all those employers who practice racial preference also be excluded?

To be consistent shouldn’t Yale, Harvard, et. al. bar recruiters from all employers — such as, for example, virtually all other law schools — who award racial preferences?

UPDATE [1 December 10:30PM]

Harvard’s and Yale’s desire to make the rest of the world conform to their own version of nondiscrimination reminds me of the headline of a news article in a Bay Area paper I recall from the days of the Free Speech Movement at Berkeley (I saved the article for many years) that announced, “Chancellor [Clark] Kerr Cracks Down on Off-Campus Non-Students.” Really, I didn’t make that up.

Apparently such behavior is not necessary, however, not even in the Ivy League. Princeton, for example, not only allows military recruiters on campus but even has on-campus ROTC. According to an article in today’s Daily Princetonian, the recent ruling will not affect Princeton. Provost Christopher Eisgruber, a constitutional scholar,

defended Princeton’s position and said the University’s choice does not violate its nondiscrimination policy because it “does not require us to exclude from campus others who do discriminate.”

“Princeton is committed to principles of equal opportunity, including with regard to sexual orientation,” Eisgruber explained, “but we do not believe that our opposition to the military’s policies should interfere with the ability of interested students to pursue military careers.”

Perhaps the good sense displayed by Princeton derives from the fact that it has no law school.

Say What? (11)

  1. Nels Nelson December 1, 2004 at 4:37 pm | | Reply

    What I find strange about this case is that neither Yale nor Harvard could possibly really need the money and so this was primarily a matter of principle. While the undergraduates around them might not see life beyond such fights and causes, I would think that law students at two such prestigious schools would be more practical and career-oriented, and unappreciative of the machinations that allowed the schools to receive funding while depriving their students of full and complete information about possible jobs (i.e., confining military recruitment literature to the library rather than the career placement office). This seems to be poor publicity – customers/students apparently come second at Harvard and Yale – for two schools that were already drowning in cash.

  2. superdestroyer December 1, 2004 at 6:32 pm | | Reply

    I have always found it odd that the universities like Harvard, Stanford, etc who have administrations and faculty who detest the military are some of the largest beneficiaries of DOD research grants.

    If Harvard was serious about this instead of just playing to the camera, then Harvard would “divest” itself of all DOD research grants and any Department of Energy Grants that are Defense related.

  3. Xavier December 1, 2004 at 7:09 pm | | Reply

    “What I find strange about this case is that neither Yale nor Harvard could possibly really need the money and so this was primarily a matter of principle. While the undergraduates around them might not see life beyond such fights and causes, I would think that law students at two such prestigious schools would be more practical and career-oriented”

    No offense, but this is absolutely hilarious. You clearly don’t know much about Yale Law if you think students there are practical and career-oriented rather than concerned with their pet causes.

  4. Edna W. December 2, 2004 at 3:15 am | | Reply

    Why should Harvard refuse DOD grants and defense-related DOE grants? The Pentagon and the DOD bureaucracy regularly employ homosexuals. Just not (knowingly) the ones in uniform.

    Meanwhile: The suggestion that it’s a disservice to Yale and Harvard students not to allow them access to military recruiters shows a touching unfamiliarity with the class of person that actually attends Yale and Harvard. These people, like our current president and vice-president (Yalies both), have other priorities.

  5. Nels Nelson December 2, 2004 at 5:28 am | | Reply

    Xavier, no offense taken, as my point was apparently not clear: the DoD’s withdrawal of funding extends to the parent institutions of law schools, and so Yale Law, as well as all the other schools within Yale, are beholden to the interests from all corners of the university. While Yale Law students might not be practical and career-oriented by your standards, they are by definition, by virtue of attending law school, more so of both than Yale undergraduates in sociology lectures and poetry workshops (and I say that as one whose major was regretfully Creative Writing).

    Edna, according to the decision the DoD described its recruiting efforts as successful even when Harvard was segregating its recruiters and refusing to coordinate interviews. While your generality perhaps applies to a large majority of Harvard and Yale law students, recruiters aren’t hoping to hire a large majority of the students. A few searches turned up Harvard and Yale Law graduates working at the DoD, Army, and NSA, and searches of other defense agencies whose names I don’t know would probably reveal more.

  6. actus December 2, 2004 at 5:32 pm | | Reply

    ‘Harvard’s and Yale’s desire to make the rest of the world conform to their own version of nondiscrimination’

    Its not just their own. all ABA acredited law schools are not supposed to have on-campus recruiting by organizations that discriminate in that matter.

    Nathan Newman has been blogging a liberal criticisim of this decision.

  7. R. Reiland December 2, 2004 at 8:13 pm | | Reply

    Some universities that supported the recruiting ban kept mute for fear of retribution. On Massie there are neighbors of a sort. Just where was UVA on this issue?

  8. Styles December 8, 2004 at 5:11 pm | | Reply

    The practical ramifications of this decision is law schools that will not allow military recruiters on campus will prevent their highly qualified graduates from obtaining a rewarding career where they could shape military policy. Unfortunately, when law schools ban military recruiters from their campuses, they place their students at a disadvantage. The recruiter might see less recruits from the law school because access is not as available as other schools, or the recruiter might attribute the law school’s hatred of the military to the student who is being interviewed.

    If I am the dean at Harvard Law, do I want a graduate from Florida State University (FSU grads don’t take offense, as I am an FSU law grad) advising the head-shed at the Pentagon regarding the DoD policy on homosexuality? No, I would want one of my graduates advising the Secretary of the Army, if I believe that my Ivy league grads are intellectually superior to FSU grads who have spent one too many times doing the “Tennessee Waltz.”

    It seems that their display of tolerance through their intolerance of those who are intolerant, is illogical in practice. In essence, it will lead to the perpetuation of the current policy towards gays in the military. The best way to combat the policy is through “good speech.” Harvard and Yale can infiltrate the military with their “good speech” by allowing their students to be hired by the military as JAG attorneys where their respective institution’s voices will be heard.

    Also, the military needs good lawyers. Of course, I don’t expect that any of the deans or professors involved with FAIR have the desire or intestinal fortitude to close with and destroy any of America’s enemies even if homosexuals could serve openly in the military. A more realistic question would be how many of these deans and professors were outraged by the pictures from Abu Graibe?

    One of the defenses cited by many of the MP’s involved was, “We weren’t trained!!!!” Who do you think does the deployment training on the Laws of War???? A JAG attorney!!! Want to prevent war atrocities? Hire more lawyers to give more guidance. Do you want a weak lawyer who subscribes to the “group think” of the command? No, you want a strong lawyer who can reason with a crusty battalion commander why he should be concerned with civilian casualties or treating prisoners humanely when the enemy is burning and beheading our civilians.

    Hopefully, this issue will be addressed by the Supreme Court soon. The Third Circuit’s opinion dropped the ball with its use of Dale. Allowing someone to be a member of a private organization is much different than allowing someone with whom’s view you don’t agree to come to two of your meetings per year where they are overtly hated and protested against. There is the possibility that someone will think that your organization endorses homosexuality in the former case, but trust me, nobody thinks that Yale or Harvard or the University of Miami endorses organizations that discriminate against homosexual conduct or overt homosexual orientation, such as the US military.

  9. PrudentMan, CFA December 14, 2008 at 11:53 am | | Reply

    I didn’t know it was a “right” to get DOE grants. If you won’t allow ROTC on campus and contribute to the nation’s defense you certainly should not get DOE money to express your anti-Free Enterprise views.

    In fact, these schools. with their multi-billion dollar tax deductible, tax free, foundations should spend some of that money on research instead of investing in worthless derivatives and countries that are anti-American while paying their investment managers millions in fees.

    What schools did these asinine judges graduate from and from whom did they get their political appointments?

  10. [...] policies (an effort that was slapped down 8-0 by the Supreme Court in Rumsfeld v. FAIR). In one of my many posts about that controversy I quoted the anti-discrimination policy of the Yale Law School:  Yale Law [...]

  11. [...] policies (an effort that was slapped down 8-0 by the Supreme Court in Rumsfeld v. FAIR3). In one of my many posts4 about that controversy I quoted the anti-discrimination policy of the Yale Law [...]

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