End to 'don't ask' won't come through JAG ban

Yale students and professors at the Law School have led a national movement to banish military recruiters from law school campuses -- and succeeded, so far. It's a classic case of academia unconcerned with the consequences of its actions and ignorant of the fact that a real world exists outside its polished ivory walls. The Law School's suit against the Defense Department has elevated, with a jarring disregard for its broader implications, a pedantic debate befitting Yale's Mock Trial Association to the national level.

If there's an issue that nearly all politically active students from across Yale's political spectrum can agree on, it's gay rights. Even we "tyrants" of the campus right believe that denying legal rights to those with differing sexual orientations is fundamentally wrong. The U.S. military's "don't ask, don't tell" policy is no exception: It is constitutionally questionable, strategically irresponsible and morally unjust. It's a policy that must be -- and inevitably will be -- changed.

It will not be changed, however, by a lawsuit in which the stated goal is to deny the military access to our nation's brightest budding lawyers. The Law School's case, Burt v. Rumsfeld, is not even predicated on attacking the patent injustice of "don't ask, don't tell." Instead, it challenges the constitutionality of the Solomon Amendment, a law requiring institutions of higher learning to open their doors to military recruiters or face the revocation of federal funding -- in Yale's case, a paltry $350 million.

The law professors involved in Burt v. Rumsfeld maintain that, by allowing military recruiters on campus, the Law School sends an implicit message to the Yale community that it tolerates intolerance. They argue further that the Solomon Amendment infringes upon the First Amendment's guarantee of "freedom of association" by requiring Yale to "associate itself" with the discriminatory military.

On Jan. 31, U.S. District Judge Janet C. Hall upheld the validity of the Law School's grievances against the Department of Defense, ruling that the Solomon Amendment was unconstitutional on the basis of its violation of the First Amendment. The victory prompted Yale's triumphant announcement that it would ban all JAG recruiters. Judge Hall, a Clinton appointee, wrote that the Solomon Amendment is "not narrowly tailored to advance a compelling interest and thus unjustifiably burdens the Faculty Members." Apparently serving a nation at war and hiring military lawyers who ensure that morasses of immorality like Abu Ghraib are never repeated don't constitute "compelling interests."

The supreme irony of the lawsuit is that it was upheld on the basis of First Amendment rights. Military recruiters interviewing at the Holiday Inn on Whalley Avenue (oddly enough, where on-campus law school interviews are held) supposedly infringe on the law students' and professors' rights of association; the school's message of tolerance becomes tainted with homophobia the moment the military interacts with prospective Yale JAG recruits. Apparently, Yale's freedom to disassociate from the military somehow trumps the choice of its students to associate with JAG recruits. Now, law students don't have a choice. Disassociation is a de facto requirement.

James Blacklock LAW '05, one of the few students willing to challenge the prevailing opinion at the Law School and express interest in JAG interviews, told me the campus ban on recruiting had rendered contact difficult: "It's impossible to get any information about JAG. I've tried calling the recruiting offices, but I keep getting referred to recruiters who want to send me to boot camp." The Yale Law School's "principled stand against discrimination" denies students the very rights of association it claims for itself and denies our military the brilliant, tolerant lawyers it needs.

It's ironic that those who affirm reverse discrimination in the form of affirmative action cannot even bear a remote connection to an institution that discriminates per federal mandate. Even more ridiculous is that those on the left who incessantly parrot that the U.S. military offers up poor, uneducated minorities as cannon fodder are now denying the privileged, well-educated elite the opportunity to serve.

Thinly veiled by the lawsuit's legal jargon and hypocritical insistence on First Amendment rights is its deep-seated disdain for the military. Congress passed the Solomon Amendment to ensure that academia's contempt for the armed forces would not thwart recruitment. In no way, shape or form does the Solomon Amendment hamper educational institutions' academic freedom. Professors and students can still issue the same anti-military diatribes they have in the past -- and will continue to in the future.

To most Americans, the idea of a university denying its students access to interviews with military recruiters while simultaneously offering ample interview space, tea and cookies to private law firms is galling. Yale Law School's suit only cements the University's ivory-tower image of an educational institution above both reality and the law. On its sheer hypocrisy alone, Burt v. Rumsfeld is destined to be overturned in the appeals process, forcing Yale and other law schools to allow military recruiting or face losing millions in federal aid.

If the government can protect its citizens by denying federal highway funds to states that lower the drinking age or raise speed limits, it has the right to deny funding to institutions that prohibit military recruiting. When Burt v. Rumsfeld is overturned, Yale's federal funding should be revoked under the Solomon Amendment, which excludes financial aid. But even then, we'll still be left with a military lacking lawyers with the tolerance and courage to change "don't ask, don't tell."

Published Wednesday, February 9, 2005
Keith Urbahn is a junior in Saybrook College.
His column appears on alternate Wednesdays.

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