Does “Equal Opportunity” Require The “Without Regard” Principle? Let’s Ask Former Yale Law Dean Harold Hongju Koh

Yesterday I discussed (here) the ACLU’s attempt to prevent Quinnipiac University from eliminating its women’s volleyball team, along with two men’s teams, in an effort to cut costs, the sort of decision one might think possessing some academic freedom protections. In preparing that post I looked at, and wound up linking, a long list of posts in which I had discussed the efforts of a number of elite law schools to block occasional recruiting visits by representatives of the Department of Defense, visits the law schools claimed violated their academic freedom by forcing them to violate their own non-discrimination policies, an argument the Supreme Court unanimously rejected in Rumsfeld v. FAIR.

Reviewing my old posts about this controversy reminded me of what on the surface appears to be a monumental hypocrisy: the claim that allowing an occasional Dept. of Defense recruiter to visit their campuses forced the law schools to violate, or to aid and assist violations, of their non-discrimination policies.

Here, for example, I quoted Yale’s non-discrimination policy —

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

— and then I noted:

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?

The Dean of the Yale Law School at the time, and a leader of the effort to bar Defense Dept. recruiters, was Harold Hongju Koh, whom you will recognize as President Obama’s nominee to be Legal Adviser to the State Department. In commenting on the Supreme Court’s rejection of the attempt of Yale and other leading law schools to bar military recruiters, Dean Koh said that

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.

The Senate Foreign Relations Committee recently approved Dean Koh’s nomination to be Legal Advisor, but it has not yet been voted on by the Senate. Perhaps it is not too late for some Senator to ask, as I did: Does Yale Favor Equal Opportunity Only For Gays? The question seems highly relevant, since Dean Koh stated clearly that he believes people must be treated “without regard to their sexual orientation” in order to have “equal opportunity,” but Yale’s practice of racial preference, and defense of it everywhere, reveals that he clearly does not believe that distributing official benefits or burdens on the basis of race or ethnicity denies “equal opportunity” to those receiving the burdens.

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