Earlier this week, commenting on Rumsfeld v. FAIR, I noted (here), that the law schools, law faculties, and assorted collections of law professors in that litigation were not being accurate when they claimed that their schools excluded all recruiters from their campuses who refused to treat all their students in a non-discriminatory manner. I asked:
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?
Peter Berkowitz makes a similar point in The Weekly Standard:
Certainly law professors who wanted to eliminate “Don’t Ask, Don’t Tell” and had respect for democratic politics would not have put the focus on their own contrived deprivations of expression and association, but would have concentrated on the claims of gay and lesbian citizens who wish to put their lives on the line for their country. Such law professors would have educated themselves and made themselves aware that the U.S. armed forces are far and away the most integrated institutions in the nation, indeed, greatly surpassing elite law school faculties and student bodies.
For this reason, among others, such law professors would have appreciated that the military is deserving of some measure of deference in its judgments about distinctions that must be drawn among individuals to maintain troop cohesion and morale. Such law professors would also have been reluctant to promiscuously hurl accusations of discrimination at the military, especially since many of the law professors had only a few years ago argued for, and won from the Supreme Court in Grutter v. Bollinger (2003), a special exemption to classify at their law schools on the basis of race because of their presumed special expertise concerning the need in legal education for diverse student bodies.
The law schools, in short, persuaded the Supreme Court to defer to their institutional need to practice racial discrimination, which is generally but clearly proscribed in the text and history of both statutes and the Constitution, but they argued that the military deserves no deference to its own need to treat a less protected class in an unequal manner.
In the notorious Civil Rights Cases (1883), finding the Civil Rights Act of 1875 unconstitutional, Justice Bradley wrote:
When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.
Liberals, and others, have been properly critical of that opinion ever since, finding (as I do) Justice Harlan’s dissent, anticipating his more famous dissent in Plessy, much more persuasive. Today, however, academia is rife with “special favorite(s) of the law.”
Peter Berkowitz cites the following comment from Yale Law School Dean Harold Hongju Koh, responding to Rumsfeld v. FAIR, on the Yale Law School web site:
We look forward to the day when the government gives all of our students–without regard to their sexual orientation–an equal opportunity to serve our country by working in our Nation’s armed forces.
Notice how the good dean here finds the “without regard” principle necessary for true “equality of opportunity.”
Some of us, mostly outside of elite law schools, look forward to the day when governments treat everyone, not just gays, “without regard” to race, creed, or color, or other protected categories.