Friday, December 03, 2004

Harvard Law School Re-Imposes Discrimination Against Military

USA Today brings us the story:
Harvard Law School will return to a policy that keeps the military from recruiting on campus in the wake of a federal court decision allowing colleges and universities to bar recruiters without fear of losing federal money.


Harvard had forbidden any recruiter from campus — military or otherwise — that couldn't sign off on the school's nondiscrimination policy. Harvard, like other schools, said the military's "don't ask, don't tell" policy was discriminatory, because it forbids overt gays and lesbians from serving in the armed forces.

The ban on open homosexuals serving in the military is part of the Uniform Code of Military Justice (UCMJ), the system of laws the US military follows. The UCMJ was passed into law by the US Congress and consists of Title 10, Chapter 47 of the United States Code.

So, Harvard is punishing the military for laws passed by the US Congress, laws the military has absolutely no control over.

According to the article, in 2002 the Pentagon invoked the Solomon Amendment, which allowed the DOD to deny funding to colleges and universities that restricted military recruitment or ROTC on campus. The schools backed off, but about two dozen law schools sued the government. On Monday, the 3rd U.S. Circuit Court of Appeals ruled that the Solomon Amendment infringed on the free speech rights of law schools.

The Volokh Conspiracy, a legal blog, covers the legal arguments and explains exactly how allowing military recruiters on campus might be a violation of the school's free speech rights. However, the author, Orin Kerr, concludes:

... the Solomon Amendment case does seem trickier than when I first looked into it. To the extent it's relevant — it's not, but some will think it is — I still disagree with the military's ban on service for gays and lesbians. At the same time, I continue to be rather puzzled by the Third Circuit's ruling; it seems to reflect a misapplication of Dale.

The Solomon Amendment sounds like a good idea to me. If it violates the university's right to free speech (which I hope the government contests), then I suggest a new clause be written into every single government contract that provides funding to any educational institution for any reason. That clause would give government recruiters from any and every part of the government free access to recruit on the campus. If the school doesn't wish to sign, that's fine. They get zero government bucks.

UPDATE: Just want to add that my main problem with Harvard is the hypocrisy of taking Defense dollars, but banning recruiters. If Harvard refused DOD bucks as well, I would probably post in praise of their integrity. As it is, Harvard Law School is just playing a childish game.

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