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Monday, May 02, 2005

Supreme Court to Hear Solomon Amendment Case

The title says it all. Read about it here.

5 Comments:

At 9:35 PM, Anonymous Anonymous said...

This comment has been removed by a blog administrator.

 
At 12:44 AM, Blogger vicktoire said...

(this is an anecdotal comment, really, just to warn you.) i have a cousin who attended nyu law and now works at columbia law, and she told me how students organised... i don't know what to call it, passive protest against the solomon ammendment. at nyu, kids signed up for interviews with military recruiters and showed their lack of respect in various ways. one student went in, kicked off his/her shoes, and clipped his/her toenails during the interview; one male student attended his interview in full drag; etc. i think it was a fabulous and well-organised way to voice an opinion.

 
At 9:35 AM, Anonymous Anonymous said...

Just a quick note to say that there's absolutely no plausible way that the Supreme Court can uphold the Circuit Court decision. Allowing the government to use your bulletin boards and rooms is not in itself 'speech,' and it's absurd to call it such. It's an extremely flimsy decision on the merits.

Jim


Vicktoire: That IS funny.

 
At 2:46 AM, Anonymous Katie Loncke said...

Jim,

If law schools are to be considered expressive associations, given that the petitioning law schools have firmly denounced discrimination based on sexual orientation, I find it far from 'absurd' to call compelled allocation of resources to employers with blatantly discriminatory hiring practices a hinderance to law schools' free speech and expression. In fact, I think the FAIR brief makes a convincing argument for considering the case on First Amendment grounds, as a matter of expressive association and speech, not expressive conduct.
http://www.usdoj.gov/osg/briefs/2004/2pet/7pet/2004-1152.pet.app.html

Personally, I find this case fascinating and very well-argued on both sides. One of the most challenging questions is whether, by conditioning funding on compliance with the Solomon Amendment, the government is actually FORCING the "law schools' propagation, accommodation, and subsidy of the military's recruiting, which is expression," given that the law schools elect to accept the government's money in the first place. Having read language from both sides (A Rumsfeld petition is at http://www.usdoj.gov:80/osg/briefs/2004/2pet/7pet/2004-1152.pet.aa.html ), I tend to think the precedents favor FAIR--especially the Court ruling in FCC v. League of Women Voters, which held that "FCC could not condition federal funds to radio stations on editorial content."

Like I said, I think this case is really interesting, on a number of levels. For instance, while my knee-jerk liberal reaction, upon reading the Post and Crimson articles, was to side with FAIR (the very measured, rational liberal reasoning goes something like this: HOMOPHOBIA(bad) + MILITARY RECRUITMENT(dubious) + GOVERNMENT COERCION(bad) = INJUSTICE!! RAAAGH!!!), I found it helpful to imagine a reversed situation.

Here's a scenario that happened in my home state of California: Catholic Charities, a religiously-affiliated organization that accepts lots of government funding, argued to exempt itself from state law requiring employers that offer pharmaceutical coverage in their employee health plans to include contraception. If the Supreme Court came down in favor of FAIR, could Catholic Charities claim that government funding conditioned on contraception coverage (three cheers for alliteration!) constitutes a First Amendment violation by compelling the organization to "send a message" counter to its ideologies?

This Catholic Charities example may not be a perfect parallel (in fact, I'm hoping it's not, since I still want to root for FAIR), but I think it's important, when forging opinions on these SC cases, to consider the long-term impacts, resisting the temptation to turn it into a partisan thing. As Rumsfeld v. FAIR clearly and hilariously demonstrates, SC precedents cast long and sometimes strange shadows: how awesome is it that FAIR is citing the Boy Scouts ruling?

 
At 10:20 AM, Blogger C. G. said...

CONSTITUTIONAL ARGUMENT: There is an excellent argument to be made that forcing a school to allow access to an institution that violates the school's anti-discrimination policy amounts to a violation of that school's right to free speech. I don't remember the specific Constitutional doctrine, but this would be essentially like the government putting words in the mouthes of law school in requiring them to seem as though they condone the Pentagon's policies.

LONG TERM CONSTITUTIONAL RAMMIFICATIONS: Outside of the merrits of the argument itself, I'm particularly interested in what the Court will say about the specifics of the Law Schools' anti-discrimination policy. I think we're no more than 20 years away from a Supreme Court ruling saying something like homosexuality is a "suspect classification", on par with gender and race, which would bring an end to institutional/legal homophobia. Certainly that opinion will referrence the holding in this case, so it will be interesting to consider the long term effects of the ruling next year.

STRATEGIES FOR PROTEST AND CHANGE: I think the method of signing up for interviews and acting disrespectfully in them is both inappropriate and counter-productive. I personally prefer Georgetown Law's reaction of passing out "DO ask DO tell" buttons during interview weeks and protesting outside of locations where military intervews are going on. I think this strikes a better balance between allowing interviews to go on while still making it clear that the Law Center and its students disapprove of Pentagon policy.

It is important to understand that the JAG Corps (the military's lawyers) are important to the running of the military and also great career options for law students. While I completely agree with the objections to "don't ask, don't tell", I must also admit that it is important that the JAG Corps get good lawyers and that students be able have that career option.

One Naval officer who attends Georgetown University Law Center's evening program wrote an excellent letter published in the Law Weekly saying that pushing the military away may not be the best option. Clearly the Pentagon (with Congress's support) has institutionalized homophobia; maybe engagement would be a more successful tactic than isolation. Though at one time part of me thought denying them access to the most talented law students would be a good way to get their attention, I am now of the mind that I'd rather have more GULC, NYU, and Columbia law students in the Pentagon. I'm pretty sure they'd be effective at reforming it from the inside.

 

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