I’m not sure if Peter Beinhart is being intentionally intellectually dishonest in this column, or if he just doesn’t actually understand the issues involved in the decision of several law schools to ban military recruiters from campus. He takes Elena Kagan to task for her role, as Dean of Harvard Law School, in “banning” the legal branch of the U.S. military from coming and conducting on-campus interviews. In fact, Kagan didn’t actually ban the military at all — she accommodated them, just not through the Career Services office. And unlike other top law schools, which actually did block the JAG Corps from on-campus recruiting, Kagan allowed JAG recruiters to come to Harvard and interview students through the Harvard Law School Veterans Association, rather than through the career center.
For context, many law schools have on-campus interview periods wherein the school hosts a range of employers and has students sign up for interview slots. At my law school — which also banned military recruiters for a time, although my understanding is that we actually banned them — there was a week wherein private law firms were hosted, and a week in which public interest organizations were hosted. It’s how most (or at least many) students secured employment for the summer and after graduation. It entails significant effort and expense on behalf of the school to organize the entire process.
Law schools like Harvard and NYU also have strong anti-discrimination policies, which state that they will not host employers that discriminate on the basis of race, gender, religion, sexual orientation, etc. And those policies are reasonable — they emphasize that the school will not use its resources to host employers that discriminate against some students. If an employer refuses to hire women or African-Americans, the school sure as hell shouldn’t use its resources — resources that are provided in large part by students’ tuition dollars — to host that employer.
But Beinhart thinks this is about the morality of the military:
In a previous Beast column, I had criticized Kagan’s action as dean, arguing that barring recruiters from Harvard Law School because the military discriminates against gays was as counterproductive as banning ROTC from Harvard during Vietnam. That comparison, my correspondent insisted, “rests on a fundamental category mistake…what happened at Harvard Law School [during Kagan’s tenure] was not anything like the anti-military policies of the ‘70s that were directed at the military because they were the military.”
But the decision by Harvard and other elite schools to ban ROTC in the 1970s was not “directed at the military because they were the military.” It was directed at the military because it was fighting an unjust war in Vietnam. Then, the military was pursuing an immoral war in Southeast Asia; today, the military is pursuing an immoral policy against lesbians and gay men. The question was, and is, whether banning the military from campus constitutes the right response.
Except that banning the military isn’t a response to the military’s anti-gay policies; it’s an even-handed application of an existing policy that applies to all organizations and employers recruiting on campus. It doesn’t target the military’s policy; it recognizes that their hiring policies are at odds with the school’s anti-discrimination policy, and it treats them as the school would any employer.
Ah, but! The military is extra-special, I guess, which is why they should be allowed to use campus resources despite their discriminatory policies, when no one else is:
My correspondent went on to argue that I was wrong to call Harvard’s ban on recruitment “anti-military” since the school’s anti-discrimination policy applied to all employers. The military just happened to be one of those that discriminated. But seeing the military as just another employer strikes me as bizarre. The military, like Congress, the courts and the presidency, is one of our defining public institutions. To question its moral legitimacy is not like questioning the moral legitimacy of General Electric. And that’s exactly what banning the military from campus does. It suggests that Harvard thinks not just that the military’s anti-gay policy is immoral (which it emphatically is) but that the institution itself is immoral. It’s like refusing to sing the national anthem because you’re upset at the Bush administration’s torture policies or refusing to salute the flag because of the way Washington responded to Hurricane Katrina. It’s a statement of profound alienation from your country, and will be received by other Americans as such.
Well, no, it’s not like refusing to sing the national anthem, and it’s not questioning the moral legitimacy of the military itself; it’s questioning the moral legitimacy of discrimination generally, and acting accordingly. There also seems to be a fundamental misunderstanding about military recruitment at law schools — it’s not like ROTC, really, at all. Law school military recruiters are recruiting for the JAG Corps, which is the military’s legal unit; they aren’t recruiting soldiers for combat. It’s different than working in private practice, sure, but it’s not all that different from lawyering at a non-profit organization, or a firm, or as a law clerk, or in another branch of government. And the military wants the same benefit as every other employer — the benefit of on-campus recruiting, at the partial expense and effort of the law school — without adhering to very basic non-discrimination requirements. Law schools wouldn’t let the Department of Agriculture recruit on campus if they refused to hire female attorneys; I don’t see why they should guilted into allowing the military on campus because of some misplaced sense of patriotism. And I wonder if Beinart would feel the same way if the military had, say, racially-segregated units, or didn’t allow female attorneys or attorneys of color to serve in the JAG Corps. Still a moral imperative to allow them on campus?
Even all of that said? Kagan did let military recruiters on campus, and was far more deferential to them than many other deans of top law schools. Here’s what happened: Many law schools barred the military from recruiting on the law school — not the whole university — campus because of the discrimination issue. Those law schools had their federal funding cut, but that was a price they were willing to pay. Some law schools, like Harvard under Kagan’s leadership, provided alternate accommodations for JAG recruiters to meet with students — giving them the same practical benefit of on-campus recruiting. More progressive schools, like NYU, did not.
Then, Congress passed a bill (the Solomon Amendment) cutting off federal funding to the entire university if the law school barred on-campus military recruiting. That meant pulling hundreds of thousands of dollars every year from the university as a whole because of the law school’s anti-discrimination policies. Most (maybe all?) of the law schools caved, and allowed recruiters on campus. When I was in law school, the school made a concerted effort to allow recruiters, but still unite students and faculty in favor of LGBT rights — the school hung a large rainbow flag in the entryway, and provided rainbow ribbons for all students to wear. They also sent out an email in advance of the recruitment explaining the situation. Most students chose not to interview with JAG, or would sign up for interviews and then not go. Year after year, the JAG recruiters went home early because there simply weren’t enough students to interview. The school’s reaction served the dual purpose of supporting LGBT students and allies, while still technically complying with federal law.
After Solomon passed, professors from several law schools joined forces and filed a lawsuit opposing the law; Harvard didn’t join, although Kagan did. After an appeals court found Solomon to be unconstitutional, Kagan still let recruiters on campus, just not formally through the career services office — a move that many LGBT advocates found offensive. Kagan’s own papers opposing the law emphasized that she still allowed recruiters on campus, giving them the same access to students as they would otherwise have, without technically violating Harvard’s anti-discrimination policies. The issue became null when the Supreme Court held that Solomon was constitutional.
Point being: Kagan’s position on Solomon was far, far from radical (Dahlia Lithwick has more on this). Even if she had done what Beinart and conservatives accuse her of doing — banning military recruiting on the HLS campus — it wouldn’t have been that extreme of a move. But she didn’t even do that. She took a more middling, accommodating approach than most other top law schools. Demanding that she apologize for that stinks of either willful misrepresentation of the facts or simple political point-scoring.
Similar Posts:
- Solomon Goes on Trial by Jill December 6, 2005
- Elena Kagan and Harvard Law School by Jill May 11, 2010
- Obama picks Kagan as Supreme Court nominee by Jill May 10, 2010
- Women in Law by Jill October 21, 2005
- Fat is a Feminist Issue by Jill May 5, 2009
I really enjoy reading these pieces by you because your passion for the subject jumps off the screen.
Thanks for the information!
I’ll admit to having somewhat ambiguous feelings about this whole issue.
I know first hand just how bad DADT is-I was discharged from the Army after coming out as trans (which isn’t technically covered under DADT, but meh). Obviously I agree that its a fucked up policy that should be repealed ASAP (and I very much look forward to the day when trans people can serve openly in the American military).
I guess having had some actual military experience, I’m a little wary about banning military recruiters from law schools, as well as the separate but very related issue of banning ROTC from elite/urban/coastal schools.
The problem is that a good sized chunk of the officer corps isn’t representative of the population as a whole. Officers are unfortunately drawn disproportionally from rural and southern schools. I remember on a forum somewhere (can’t think of it off the top of my head) where Allyson Robinson, a trans woman, West Point grad and (I think) current HRC employee, recently visited West Point, and lamented how back not so long ago many West Point students had as their back up schools either Ivy League or similar elite schools. Now they tend to have bumfuck southern schools as their backup choices.
I find myself genuinely torn over this issue-I know all too well how shitty it can be to discriminated against on the basis of sexual orientation and gender id, and I’ve sorta evolved into an anti-war radical myself, but the military isn’t going away, and I think its important for civil-military relations that this problem be addressed.
You know how every once in a while you see news stories about the pernicious influence of fundygelical Protestantism in the military? Shenanigans at the USAF Academy? Franklin Graham being invited to the Pentagon? I think there’s a definite connection between the rise of a southern dominated officer corps in the past 20-30 years and this.
The notion of military exceptionalism is as pernicious as anything in American politics right now. It leads to needless wars and deaths, and pollutes nearly everything that Congress touches. The Solomon amendment is just another example. Alas, I expect to see a openly gay or atheist President* elected before I see one who’s willing to speak the truth about our military.
*Neither of which I expect to see in my lifetime.
@ Amanda in the South Bay:
My university’s talking right now about bringing back ROTC, and there is the point to be made that allowing officers to be recruited from liberal schools would have a positive effect on the military, but it’s ultimately Congress’s call. There are plenty of military voices on both sides of the debate, and there’s no way an overwhelming military consensus on repealing it would sway a Republican Congress anyway, so what’s necessary right now is getting liberal congresspeople. (And a repeal of DADT might have the pleasant side effect of getting all those officers who bluster and threaten to resign to actually do it.)
Shorter Peter Beinart: You may think that the United States of America is a nation defined by ideas–ideas like liberty and equality for all–but, when you get down to it, it’s all about our badass armed forces so go fuck yourself.
The comparison holds for another reason. In neither Vietnam nor DADT is the military acting independently. Our military is merely an arm of the federal government. If our elected officials choose to use the armed forces to fight unjust wars, then protest the officials!
The same is true for DADT. The military DOES NOT discriminate on the basis of sexual orientation. Congress does. In fact, when military leaders recently called for repealing DADT, they were rebuffed by Congress! Protesting JAG recruiting only serves to stigmatize the military in the country’s top law schools. It doesn’t further the cause because the object of the protest is not the one discriminating against anyone.
“It’s a statement of profound alienation from your country, and will be received by other Americans as such.”
So is being banned from serving in your country’s military. Just sayin’.
So instead of doing as your school did, Jill, and complying so as to keep federal funds without encouraging the recruiters, Kagan chose to actively make the recruiters’ experience as easy as possible, at the expense of her LGBTQA students, faculty, and staff.
Everything I read about her suggests she only ever makes politically expedient choices and has yet to take a moral stand on anything. I find it disheartening that she is Obama’s first choice.
The ideas of our nation and their practical execution are complex and often conflicting; and moreover the millions of citizens of the country have very different concepts of what those ideas are and how they should be put into practice. Viewing this as a black and white issue on a personal level makes sense. Expecting the government to do so–or expecting that of someone like Kagan, who is responsible to large groups of people with diverse opinions–is not.
djf:
Prior to DADT, the ban on gay people serving in the military was in place under military law. Had the military changed its law, then Clinton and Congress would not have had to step in to come up with this “compromise.” It was not Congress’s fault that prior to DADT the military asked a question about sexuality on recruiting forms, conducted withchunts for LGB servicemembers and forced people to make confessions under stressful circumstances and the threat of jail time for lying on their intake forms and being outed to their family,etc.
The blame for DADT belongs in large part to the military. The truth is, compared to the former policy of the military DADT is a godsend where being outed doesn’t mean possible jail time b/c you lied on intake forms and witch hunts are banned.
Tracey, you’re right about pre-DADT. But my point stands that opposing DADT by protesting JAG recruiters – who have no responsibility for DADT nor authority to change it – is not productive.
djf:
I apologize, I took your post as saying the military had no responsibility for the policy (I believe their refusal to act led to Presidential and then Congressional interference). I believe that Hagan’s position and those of other is that since they do not allow recruiters from other organizations that discriminate to come to some functions, the military should not be an exception.
Djf I completely agree with the points you have made. It is not productive to protest JAG recruiters when they are not the ones making this policy. Congress is the one who has made this policy. Those are the people you should protest. JAG recruiters are simply there doing there job. As a matter of fact, many people in the military do not agree the DADT, but they have no power to change it.
My goal as a law student is to hopefully become part of the JAG corp, and there is a huge stigma against the military at my school. The backlash I have gotten from some because I choose this route has been strong. I am also conflicted on this subject because I do not agree with DADT, but I know I want to join the military. I have my personal reasons and I know that is where I belong.
I don’t agree with the treatment of JAG recruiters such as making appointments and not showing up and wasting their time. These individuals for their own personal reasons choose to join the military they are not making policy in the military and I don’t think treating them as if they were responsible for this is correct. We need to protest to the politicians these are the people with the power to change this, and I hope it will be change soon because it is far overdue for this change to occur.
To all the people concerned about targeting recruiters I have to wonder:
There was a college basketball coach that didn’t allow lesbians to play. If a high school prevented recruiters for that basketball team to come to recruit their students would you be outraged? I mean, it is the coach making the policy, not the recruiters or other team members, so the same sympathy should apply. But I seriously hope no one would jump down a school’s throat for not allowing people to come recruit for a discriminatory team, regardless of who made the policy.