Military Recruiting at Ivy League Schools

Wrangling Over Military Recruiting (Inside Higher Ed)

Another domino has fallen in the conflict between colleges and the military over gay rights. But Congress is making clear that the fight is far from over. Yale University’s law school on Tuesday became the second in recent weeks to announce that it will reinstate a policy barring recruiters from the U.S. military from its campus, because of the military’s policy of discriminating against gay people. Yale’s decision came after a federal judge on Monday declared unconstitutional a law that allowed the U.S. government to withhold certain funds from colleges that banned military recruiters.

[…]

The day after the Third Circuit’s decision, Harvard’s law school reversed its policy to again bar military recruiters from its career placement office, though law students there can meet with military recruiters on Harvard’s main campus.

This is a decade-old controversy that shows few signs of abating. Congress first passed a law restricting the flow of Defense Department funds to colleges that refused to open their campuses to military recruiters in 1994, and later expanded it to apply to funds from other agencies. After the Defense Department stepped up its enforcement of the law in 2001, a coalition of two dozen law schools and faculty bodies sued the department, in October 2003. It was that lawsuit that the Third Circuit ruled on last fall.

[…]

Besides Harvard and Yale, none of the other law schools that opened the door to military recruiters under the specter of the Solomon Amendment have yet reversed their policies, probably because the Third Circuit’s ruling is tenuous; the Justice Department has announced its plans to appeal that decision to the U.S. Supreme Court.

Colleges are also reading other signals. By a margin of about four to one, the House of Representatives approved a resolution Wednesday encouraging the Bush administration to go all out to ensure continued enforcement of the Solomon law. The resolution contains what can only be read as a veiled warning to colleges that Congress could find other ways to punish them if the Solomon Amendment is ultimately defeated in the courts. It includes a reminder that lawmakers have “chosen over time” to give colleges money “for a variety of government programs,” and that those funds are “not an entitlement.” And it says Congress will “explore all options necessary” to ensure that military recruiters continue to have access to college campuses, “including the powers vested in it under article I, section 9, of the Constitution”: that is, the clause under which it hands out money. Specifically, a Republican Congressman from Minnesota, John Kline, has asked members of the House Appropriations Committee not to award pork-barrel spending projects to colleges that bar military recruiters.

It’s unclear to me how, if the 3rd Circuit decision stands (I make no prediction as to what SOTUS will do, since their rulings on gay issues are incoherent), this measure would be any different. If Congress can not withhold specified funds such as scholarships and student aid from schools who bar military recruiters, it’s unclear how they could, as a matter of written policy, exclude schools from pork on similar grounds.

It’s undeniable that the military openly discriminates against homosexuals and, presumably, private institutions should be free to object to this practice by barring military recruiters and ROTC programs from their campasses. Given that the Supreme Court has upheld the statutes that require the military to ban homosexuals, it is incongrous that Congress should be required to subsidize schools that refuse to comply with the completely reasonable public policy objective of recruiting military officers. Still, that’s the state of the law in Delaware, New Jersey, Pennsylvania, and the Virgin Islands until and unless the Supreme Court says otherwise or the 3rd Circuit reconsiders.

FILED UNDER: Congress, Education, Law and the Courts, Military Affairs
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Michael says:

    I think barring military recuiters accomplishes nothing by the way,

    BUT…

    In Dale v Boy Scouts, the Supreme Court upheld the right of the Boy Scouts to free association and STILL receive some public funding. In other words, that they were a “public accommodation” didn’t mean they weren’t allowed to discriminate. The Boy Scouts have decided that homosexuality is not conduscive with their “morality code,” and the Supreme Court allowed that argument.

    SCOTUS should also then allow private schools who receive public funding and freely associate their schools with whom they please. Allowing employers who discriminate against gays is against their morality code.

    Tell me why SCOTUS shouldn’t uphold this ruling?

  2. James Joyner says:

    In Dale, the state of New Jersey was attempting to force the BSA to employ someone whose lifestyle they considered antithetical to their mission. SCOTUS held that the BSA had a right not to employ someone they considered antithetical to their mission.

    Congress here isn’t forcing Harvard or Yale to hire soldiers, only to allow them to recruit. I’d argue that’s far less intrusive. Further, the schools have the right to bar the recruiters but, if they do, they lose public compensation.

    The Majority in Dale noted, “However, the freedom of expressive association is not absolute; it can be overridden by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”

    Clearly, military recruiting is a compelling public interest unrelated to the supression of ideas. The question then becomes whether the military can still effectively recruit graduates of top schools if they’re barred from campus. I’m not sure what the answer to that is, honestly. The ban no doubt hurts but it doesn’t make it impossible.

  3. Michael says:

    “that’s far less intrusive”

    But it’s still government intrusion.

    “compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”

    Is it a compelling state interest to be allowed into a few private schools? No. It IS a state interest. Hardly compelling.

    Would it not be “significantly less restrictive” to open a recruiting office just off campus?

  4. kappiy says:

    It seems very stupid on the part of Congress to tie Defense department dollars to compliance with a discriminatory rule that really contributes nothing positive to national defense.

    Research and development coming from top universities like Yale and Harvard is far more useful to national defense than allowing recruiters on to those campuses.

    Given the fact that social acceptance of sexual difference is becoming more and more mainstream, one wonders why the Defense department hangs on to such antiquated regulations.

  5. Walter E. Wallis says:

    Interposition was decided at Appomatox Courthouse. I say strip them of their tax exemption, too.

  6. Mario Mirarchi says:

    Remember the Grove City case from 15 years ago? I believe the basic principle here is “he who pays the piper calls the tune”.

  7. McGehee says:

    Indeed. If private colleges can be forced to practice federally mandated “affirmative action,” then why can’t they also be forced to allow military recruiters on campus?

    Sauce for the goose, and all that.

  8. Georgetown is hands down next I’m sure. If you’ve been following this the profs there are VERY active in this fight. I think this is all a bunch of bs. Law firms are allowed to hand out candy, pens, paraphanalia, host lunches, dinners, intrude on EVERY aspect of the law school and all the military wants is a table at which students who are interested sign up and come and have an interview. The recruiters are asking for a friggin table. Besides the fact that they aren’t discriminating illegally. If the law schools want to fight this fight they should do so with the Congress that passed “Don’t Ask Don’t Tell” and not the military. The military is LEGALLY discriminating, and since that is the law, you think law schools should respect it.

    My view-it is silly and counterproductive to discriminate against homosexuals in the military. And the Judge Advocate’s I have spoken to say that by no means is it a “witch hunt” in the military, and basically the few people that do get kicked out for being gay are running around screaming I’m gay as an excuse to get out early. Remember the MASH episodes where they acted like they were crazy to try to get sent home…think like that…

  9. kappiy says:

    Aside from the legality of the issue, it certainly seems that Congress has an extremely low opinion of soldiers.

    How else can one explain such a irrational regulation?

    The military is a workplace–not a “sexplace.” All the arguments for discriminating against homosexuals in the military are based around some notion that open homosexuals will somehow “disrupt” the ranks. This assumes that soldiers and military careerists are somehow unprofessional homophobes who will freak out if they encounter someone of a different sexual orientation.

    Of course, this logic is idiotic. Soldiers are generally very professional and have to deal with all sorts of diversity all the time. To think that allowing open homosexuals to serve will somehow disrupt this, is really insulting to military workers.

  10. DC Loser says:

    “To think that allowing open homosexuals to serve will somehow disrupt this, is really insulting to military workers.”

    Civilian government workers are already serving alongside military people in war zones. The military has to abide by non-discrimination laws for civilian employees, and that include gays. So we have the ridiculous situation of military commanders on the one hand enforcing “don’t ask, don’t tell,” and the other enforcing non-discrimination laws protecting gay civilian employees.

  11. “If private colleges can be forced to practice federally mandated “affirmative action,” then why can’t they also be forced to allow military recruiters on campus?”

    Quibble: private colleges are not required to practice any form of affirmative action in admissions (although they cannot engage in racial discrimination; see e.g. Bob Jones University v. United States); they are subject to the same EEO requirements as other private entities in their hiring of faculty and staff, however.

    However, I think Congress could legitimately require private colleges to not engage in viewpoint-based discrimination if they receive federal funds.

  12. It is surprising to see people debate so passionately something that they are so ignorant of. As mentioned above, the military isn’t discriminating against homosexuals per se. It is requiring that homosexuals in the military keep their sexual orientation to themselves. And the military isn’t conducting any active sweeps to find them.

    Further, the oversimplification of the military arguments in favor of these restrictions on open homosexuals in the service are laughable. The equation between private contractors and military units is nonsense. Military units operate in closer confines, over greater periods of time, than contractors. If you want to rebute the military argument, use the actual arguments rather than silly strawmen.

    The bottom line is that the military is operating a legal policy that the private schools disagree with. That’s fine. They can disagree all they want. But the private schools cannot rationally claim entitlement to government funds while excluding the government from contacting its students. The 3rd Circuit’s reasoning is quite bizarre.

  13. LJD says:

    Robin has hit the nail directly on the head. “…the military isn’t discriminating against homosexuals per se. It is requiring that homosexuals in the military keep their sexual orientation to themselves.”

    Interesting to hear from sexykitty that “The military is LEGALLY discriminating”. Joining the military is a choice, nuch like choosing to work in any other profession. There are a number of jobs where being flambouyantly homosexual would be a detriment to success in that career.

    I am confused by Kappiy’s semingly contradictory statements. First “The military is a workplace—not a “sexplace.” A point that I wholly agree with.

    But then he says “To think that allowing open homosexuals to serve will somehow disrupt this, is really insulting to military workers.” Open homosexuals? What is that? I thought the workplace was not a “sex place”? And yes, this also brings into question the role of women in the military, and recent conduct violations by troops.

    Lets all remember that this is Clinton’s policy, “Don’t ask, don’t tell”. It allowed him to avoid the question, to balance between the outright banning of gays and openly admitting them. The latter we all know would never work. The former would never be accepted by the vocal left. The fact is, a gay person can have a military career if they choose to play by the rules. Just like any other job.

    The question here ought to be why a college that rakes in $30,000 a year per student requires any government funding.

  14. kappiy says:

    LJD- My statement that the military is a workplace, not a sexplace is not contradictory at all. It is the DoD that defines it as such.

    The problem with the policy is that it is not limited to on-the-job conduct. If you are on leave, for instance, and go to Toronto and get married to someone of the same sex, you will be discharged. If you get married to someone of a different sex, you will not be married. This is an irrational discrimination and should worry anyone who is wary of having the government (or an employer) meddle in individuals’ private affairs.

    The military doesn’t need a homosexual conduct policy at all. They should treat all soldiers equally.

  15. LJD says:

    I suppose that fits well into the civilain mindset, but you’re still not convincing me of anything. The military is the kind of job where there is NO “off-the-job” conduct.

    Imagine, a soldier goes to get married in Toronto, but then returns to duty after leave. Does his “wife” or “husband” or whatever go to FRG meetings to support their significant other? Not exactly keeping it in the closet, and yes, it does affect on-the-job conduct.

    I will reiterate: joining the military is voluntary. Many young heterosexuals sacrifice the first twenty years of their professional and family lives, by choice, to do so. Very likely the pressures put on military families and relationships causes young people seeking a career in the military to remain single.

    Bottom line here, a gay person can choose a military career, and concurrently choose the restrictions that go with it. Just like any other job in society.

  16. LJD says:

    “The military doesn’t need a homosexual conduct policy at all. They should treat all soldiers equally.”

    So do gay soldiers shower with the men or the women, or does everybody just shower together?

  17. LJD says:

    “The military doesn’t need a homosexual conduct policy at all. They should treat all soldiers equally.”

    So do gay soldiers shower with the men or the women, or does everybody just shower together?

  18. LJD says:

    Crap, sorry for the double-tap.

  19. kappiy says:

    LJD-

    I guess, I am not convinced about any effect it might have on the military workplace environment.

    “Does his “wife” or “husband” or whatever go to FRG meetings to support their significant other? Not exactly keeping it in the closet, and yes, it does affect on-the-job conduct.”

    I am not sure how the gender of one’s partner affects on-the-job-conduct?? I dont know why it would matter about FRG meetings. If the purpose of the FRG is to help families deal with the stresses of being a military family, what in the world does sexual orientation have to do with this mission?

    With regard to the showering comment, I am not sure what you’re getting at? If facilities are set up on the basis of sex, what does it matter. I am sure that the YMCA where I work out has people of various sexual orientations, but it doesn’t seem to bother anyone. There is no disclosure form you have to sign when you join the Y or any other private health club. Those institutions seem to be functioning fine–why not the military?

    The shower argument reminds me of the misogynistic strands of islam that require women to cover their face so as not to illicit lewd behavior by men. This, of course, is completely idiotic logic. The same goes with the shower scenario. What’s going to happen if you shower in the presence of someone of a different sexual orientation? Your own orientation is going to change?

    I think most people are comfortable with their sexual orientation–which is why I said earlier that trying to limit soldiers’ exposure to homosexuals is based upon the faulty assumption that military workers are somehow stupid or weak enough to act professionally in a workplace environment.

  20. LJD says:

    I’m not sure the YMCA model is a good one to follow for our military. The job soldiers have to do simply does not compare to a regular 9-5. There are reasons to question gays in the military as well as women. Further there is reason to discuss how they will be utilized and the impact on a unit’s effectiveness. ALL that matters is the mission, not an individual’s “feelings” or “fairness”, or anything. Just accomplishing the mission.

    The point of the article was whether the military discriminates. The answer is no. A gay person can choose to enter the military and follow the rules. Just like every one else. You can try to make it a debate over gays in the military, but it’s not.

  21. PodPoet says:

    Don’t Ask, Don’t Tell
    Don’t ask, don’t tell
    Rings deaf in these ears
    It comes from cowards’ tongues
    And exposes their fears