An article in The Daily Northwestern reports that the law school has been urged to ban military recruiters because they discriminate against gays. The law school, like many others, disapproves of the military’s policies but lets them recruit anyway since the Solomon Amendment bars federal funds to schools that exclude military recruiters. (Link via Howard Bashman)
I’ve discussed some of the inconsistencies of the anti-Solomon argument here, here, and here. But let me ask again: 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?
But I thought we changed for the sake of change, and allowed things for the sake of allowing them. Since when were things supposed to be consistent?
Without necessarily endorsing the following argument, let me just throw it out for consumption:
If you agree with the approach laid out in footnote 4 of United States v. Carolene Products (perhaps the most famous footnote in Constitutional law), the particular kind of discrimination that the Court is to police against is that against a discrete, insular, and unpopular minority. African-Americans, Latinos, and gays fall into that category, but whites do not. Thus, one could argue in favor of excluding the military without necessarily needing to exclude law firms that practice affirmative action.
Is this argument persuasive? Perhaps not, but discrimination isn’t symmetric. It may be that discrimination against whites, while not as bad as that against discrete and insular minorities, is still bad enough that it shouldn’t be allowed. And it may be that there are other forms of discrimination against discrete and insular groups, such as Catholics, that should be attacked with a vehemence that liberals do not display. These are all legitimate grounds for debate.
Also, since the military has a complete ban on gays (sort of), the objection to military recruiting is a little different than simple non-equal treatment.
PS. I think the Solomon Amendment challenges are fundamentally misguided, given that the courts have upheld the military’s ban on gays.
Tung, your comment says everything I was planning to say. I agree completely. John, I’m afraid your comparison is not valid.
Footnote 4 is indeed a famous footnote, but I think it’s a stretch to substitute its concern for discreet and insular minorities (but note: there’s nothing in the footnote to suggest that such minorities should be the only beneficiaries of anti-discrimination protections) with the far more sweeping command of “equal protection” in the Constitution itself (not a gloss on the Con. in a footnote), as interpreted in the line of cases making clear that all races deserve the non-discrimination protection, or for the very specific command of non-discrimination in Title VI. As for whether or not my comparison is valid, I’ll be willing to modify or retract it when universities eliminate their grandiose pronouncements opposing discrimination and supporting viewpoint diversity with more accurate statements of what they mean.
John, as usual, you do a good job of skewering hyperbolic language on the part of universities. But as to the asymmetry of discrimination, footnote 4 can be read as suggesting that discrete and insular minorities are entitled to a higher level of protection for equal protection purposes than non-minorities. (Strangely, this isn’t how the case law has developed, even though current law upholds affirmative action. . . .) This doesn’t mean that non-minorities get no equal protection, just that the standards for reviewing discrimination against minorities are stricter than those for reviewing discrimination against non-minorities.
Again, that’s not to say that discrimination against non-minorities should be upheld automatically. It may well be that affirmative action should be struck down. But footnote 4 may mean that the arguments for striking down affirmative action are different from those for eliminating discrimination against minorities.
(I hasten to add that our host in fact has made a number of those arguments quite well in other posts.)
Tung Yin, Thanks for kind words. I don’t doubt that Footnote 4 can be read the way you suggest. My only point is that despite the veneration in which it is held, Footnote 4 is neither part of the Constitution nor even a statute. It is not canon law. It is certainly a plausible way of reading what the Constitution requires, especially given the, er, flexibility of meaning that the 14th’s framers bequeathed to us. But it is not a required reading. Or rather, we are under no more of an injunction to accept that reading than any other interpretation by the Supremes. And it does not speak at all to what Title VI requires, at least in my view. (As you know, I reject the view that Title VI means neither more nor less than whatever the 14th means.)
In short, I do not find the argument — whether based on Footnote 4 or not — that different groups are entitled to different standards of review to determine discrimination unreasonable or, often, implausible. I just don’t find it persuasive.
Sorry about the late post here. I was computer-less for a few days, but now your good fortune has run out.
Ah, good old footnote 4. Perhaps it should be renamed the depends-on-whose-ox-is-getting-gored footnote.
TY’s claim that in SCt jurisprudence “the standards for reviewing discrimination against minorities are stricter than those for reviewing discrimination against non-minorities,” is at odds with the Court’s opinion in the VMI case.
In that case, the majority held that sex discrimination by a state must be reviewed using a standard virtually identical in its practical effect to the compelling interest standard.
But, then again, I suppose in the mid 1990’s women constituted a discrete and insular something or other. (I was going to say “discrete and insular minority” but the facts and elementary arithmetic conspired against me; and, unlike the Court when it’s in the mood for a little aggrandizement, I have neither the vocabulary nor the absence of shame necessary to pull off such legerdemain.)
Actually, Stu, I noted that this proposed reading of footnote 4 was in fact not the current jurisprudence. I merely suggested that it was possible to read footnote 4 as creating such an asymmetry.