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Saturday, December 17, 2005

Thanks Dean, I didn't want to study for finals anyway.

Here is a defense of the Law School’s position on the Solomon Amendment from Dean Alex Johnson, Prof. Dale Carpenter, and Prof. Beverly Balos, who is chair of the Solomon Amendment Amelioration Committee.  While it is noted at the end that they are writing in their capacity as individuals (to the extent that the Dean of a law school can really be separated from that school), I doubt that it is far from the law school’s real position, except that they feel the need to separate themselves for official reasons.  Some points of contention:

“It is precisely because we respect and support our armed forces that we want them to be stronger by including all qualified and loyal Americans, whether black, female, or gay.”

Is it really necessary to toss in a laundry list of approved victim groups here?  Last time I checked this issue was only about the last.  The others may have been issues to differing degrees in the past, each for their own reason, but they are not here, and serve only to muddle the issue.  Why couldn’t they have just said “whether gay or straight”? or something like that.  

“In wartime, expelling thousands of service members (like Arab linguists) who happen to be gay hurts national security, wastes our tax dollars on needless investigations into their private lives, and unfairly discriminates against our students.”

Is there data on this somewhere?  Does the military expel thousands of gay service members every year? (actually, according to the Servicemembers Legal Defense Network, which is dedicated to abolishing dadtdpdh, the most servicemembers expelled in any single year, across all branches, was 1273) Are Arab linguists disproportionately gay? If not, does “like Arab linguists” really need to be there?  Are there really expensive, shady, in-depth investigations going on? In wartime this isn’t ok, but it might be in peacetime? (the statement leaves that possibility open)  This statement, like others, boils down really to one thing, “unfairly discriminates against our students”, which is a fine position to have, but has so many extras tacked on that the only point is lost in the clutter of misdirection.  The wasting of tax dollars comes up again:

“In an age of expansive federal budgets increasingly leveraged to pressure dissenters to conform, we must preserve liberty at home just as our military defends it abroad.”

Oh yeah, the U is really worried about federal budgets being too big.  $351 million dollars came to the U last year alone.  Now, I do think they have a point about the law school not being dependent on federal funds (though I imagine with the exception of federal student loans), and that the reason the schools follow Solomon requirements is that they’re essentially being nice to the parent institution.  The text of the Solomon Amendment does not mention law schools specifically, but it is the law schools (or rather, law schools under FAIR, and law profs under SALT) and not the parent institutions (who have a lot more to lose) that are challenging it (though there are probably a good number of the latter affiliated with FAIR).  Furthermore:

“Since we are compelled by the Solomon Amendment not only to permit but to assist in this on-campus discrimination, the faculty joined FAIR”

Again, read the text.  They are required to assist by not having a policy that explicitly or effectively denies military recruiters access to:

Names, addresses, and telephone listings.  Date and place of birth, levels of education, academic majors, degrees received, and the most recent educational institution enrolled in by the student.

But of course:

“Students who disagree with the law school's non-discrimination policy, or with our commitment to enforcing it, are free to speak up.”

Yeah, I’ll go ahead and do that, I heart discrimination, and would love to be identified as such.  As I’ve said before, and I have been a total hypocrite in this regard, I think this issue is being beaten to death.  For my part, while civilian control of the military is essential for the preservation of a free society, I cannot presume to know or say what would be best for the military in this area.  Apparently the Dean and these Professors feel comfortable doing so.  Though they profess to want to make the military stronger, their course of action will do nothing to remedy what they see as the real problem, “Don’t ask, don’t tell, don’t pursue, don’t harass.”

Overturning Solomon would accomplish just the opposite of what they claim to want: it would reduce the military’s ability to get the best people, whether they be black, female, or gay, or heavens, white, male, Hispanic, Pacific Islander, Native American, asexual, Inuit, whatever, because there will be schools that don’t just “not assist” recruiters, but close the doors to them altogether.  I reckon FAIR et al. think that a victory here would push the military to get rid of DADTDPDH, and though I doubt it, it could.  A more honest, more legitimate, and probably more effective way to do that would be to work to change public, military, and legislative opinion of the ban on open homosexuality.  Alas, like supporters of so many lefty causes, they have decided to use the least democratic, least representative, and least accountable branch instead.  And Hamilton thought the judiciary was weak.


Here's a couple of questions:

Do you think the ban on openly-gay individuals in the military proper or just? Do you personally think this is a good idea?

Why do you discount the policy arguments regarding waste of taxpayer dollars (for training before discharge, etc) and about military efficacy?

Should the military have to make some sort of showing about the need to exclude openly gay individuals? (My understanding is that they refused to present any evidence at all in the lower courts.)

Finally, the professors (and students) opposed to the Solomon Amendment think the law violates the Constitution. Why shouldn't that be remedied through the courts? Don't we have the Constitution because some things, like free speech (or equal protection), shouldn't be left to the ordinary political process?
One more: Can't the Solomon Amendment lawsuit, even if legally meritless, be part of a larger organizing strategy aimed at changing public opinion? You may think it will be counterproductive in that regard, but I know it's something the opponents of the Solomon Amendment are trying to do.
1. On that, as I said, I don't really have a strong opinion.

2. Because I doubt that there's that much money involved there, and because I don't think the authors actually care about the spending. As for military efficacy, again, finding the Solomon Amendment to be unconstitutional, which is what the Dean, FAIR, SALT, and the rest want, even if what they claim about the strength of the military is 100% true, will, absent a change in DADTDPDH, actually serve to make the military weaker by allowing schools to shut them out.

3. Sure, why not, except that DADTDPDH was established by Congress, its not just internal military policy. Though I am sure that many in the military are cool with DADTDPDH, and some probably think that it doesn't go far enough (and I confess I am not sure what Rummy's position is offhand) the most important "need" from the military perspective is that it is the law.

4. Years of practice have shown that it is one route they could take, I just don't its right in most cases.

Aside from all of that, I should note that this case, as the authors of the piece I was critiquing pretty much left out and I did nothing to remedy in my post, that this case really has a lot more to do with conditions on federal spending than it does with DADTDPDH, as Prof. Carpenter notes here:

That confusion is part of why the issue has gotten so blown out of proportion, to the point that some law students in Grinnell sweatshirts think that the law school nondiscrimination policy forbids National Guard table tents or bulletin board postings, but that its ok for the career center to email us about "diversity" clerkships that, lets face it, 90% of students shouldn't even bother applying for.
ok, quickly, since the address got but off in the last post. Prof. Carpenter's piece is at

As to your "one more thing", I think using courts to change public opinion is questionable. The suit may draw attention, but it won't clarify what the actual issue is or what their arguments are, because most people (normal people, not us) don't pay them that much attention, and the issue, as here, tends to get confused. You may love raising awareness, I know that's the cool thing to do nowadays, but the court is not a toy to be used to that end, and well, it just won't work.
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