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Wielding the First Amendment as a Sword Against the JAG Corps:
Why Law Professors Are Wrong to Sue Over the Wisdom of the Solomon Amendment


Tuesday, Sep. 30, 2003

On September 19, in federal district court in New Jersey, a lawsuit was filed that seeks to overturn the Solomon Amendment. That Amendment withdraws all Federal contracts, grants and loans from those universities and law schools that refuse to allow on-campus recruiting by the armed forces.

The plaintiffs in the suit include law professors and law students who claim their First Amendment rights have been violated. They say that, among these rights, is the right to ban recruiters for the Judge Advocate Generals (JAG) Corps of the Air Force, Army, Navy and Marine Corps from participating in their law schools' career placement interview programs.

In truth, however, there is no First Amendment violation here. Indeed, what the plaintiffs claim is not a right to speak or associate, but a right to prevent others from doing so. Their invocation of the Bill of Rights, then, could not be more wrong.

The Plaintiffs' First Amendment Case Is Weak Or Nonexistent

Obviously, the plaintiffs have the right to speak or write critically, in their classrooms and law reviews, about the JAG or the armed forces. Moreover, if the government were to try to impose limits on this speech, they would have the right to invoke the First Amendment as a shield.

But here, the plaintiffs want to use the First Amendment not as a shield, but as a sword. Their claimed right is not a right to freely speak one's opinions, or freely associate with others. To the contrary, it is a right to enforce their opinions by silencing others - and to prevent freedom of association by banning contact between law students and the JAG. In the plaintiffs' view, their rights to speak and associate override these same rights for others. Remember, law students are not forced to meet with JAG recruiters and be recruited by them; they choose to do so.

But the law professor plaintiffs in the suit seem to think they are the exclusive possessors of free speech rights at their schools. Not only do they seek to deny JAG recruiters these rights, they seek to deny these rights to their own students - students who are supposed to be learning from them what the Bill of Rights means!

Second and third-year law school students are adults in every sense of the word. Typically, they are as least twenty-four or twenty-five years old. By definition, they have spent over two years learning how to think critically about issues of public policy. Soon, the school will send them out into the world to give counsel to others on complex legal matters. They have probably debated in their classrooms the very issues that military recruitment on campus raises.

But now these very adult students' professors are saying the students can't be allowed to think for themselves, and associate with whomever they choose. Instead, the professors believe, recruiters must be banned. This isn't speech, it is silencing; it is not education, it is coercion.

Congress Has the Right to Place Conditions on Funds It Grants

Not only do the plaintiff law professors and students seek to silence and separate those whom they are not entitled to silence and separate. They also seek to receive funding to which they are not entitled, by refusing to comply with the condition upon which it was given in the first place.

That is, of course, the entirely reasonable proviso that since the federal government is granting the funding, its recruiters ought to be allowed to recruit on campus, just as other employers who do not provide funding can.

Biting the hand that feeds you - while at the same time welcoming other hands - is not only impolite, it's illegal. Worse, it's also hypocritical.

The federal funds at issue include lucrative contracts with the Defense Department for research and consulting. They also include veterans' education funds for students who earned the chance to study through their own military service. In these instances, it seems, law schools and their professors are not bothered by taking money from the evil Federal government despite the fact that the funds are directly connected to the military.

This Case Is About Anti-Military Animosity, Not "Don't Ask, Don't Tell"

Of course, the reason that the professors and students seek to ban on-campus JAG recruitment is the "don't ask, don't tell" policy with respect to gays and lesbians in the military. And again, the plaintiffs have the right to oppose this policy - and even to claim it is evil. But claiming the policy is so evil that it is beyond the realm of civilized debate, contradicts its history.

The "don't ask, don't tell" policy is not something the Defense Department created on its own. It is a liberalization of the previous policy - and it is geared to allow gays and lesbians to serve.

It is also a compromise that was chosen by President Clinton, a Democrat, and validated by Congress in the Solomon Amendment. With respect to the Solomon Amendment, Clinton and Congress agreed that the ability to recruit graduates from all universities and law schools is important to sustaining the armed forces in their mission of national defense.

In particular, broad recruitment is essential to ensuring diversity among those who practice law in the military. Diversity is important to reassure all service members that the attorneys who prosecute, defend and judge at courts-martial will be fair and just. It is ironic that law schools, who value the diversity of their own students and faculties so highly, would seek to impede the same diversity in the JAG Corps.

The plaintiffs, who oppose the "don't ask, don't tell" policy, should devote their efforts to lobbying their representatives to change it. That's the democratic option. Instead, they've chosen a coercive option that infringes on the rights of others.

They may try to cloak themselves in the rhetoric of civil disobedience. But don't be fooled. The issue in the suit isn't, can law schools ban JAG recruiters? The question is, can law schools ban JAG recruiters and still receive federal funding? The schools want to have their cake and eat it too: To speak, and be rewarded by the very government they are bashing and banning from campus.

Indeed, the law schools' convictions can't really be as strong as they say. The law schools' position is clear: They will allow JAG recruitment - unless they can withdraw it, and still preserve their funding. If they really thought "don't ask, don't tell" was evil, as they say, then they wouldn't allow JAG recruiters on campus under any possible circumstances, even if it meant losing their funding. It takes no courage to have convictions when there are no negative consequences.

Don't believe this controversy is really about "don't ask, don't tell." Instead, it's about a longstanding animosity. Since the Vietnam War, this animosity by professors toward the military has continued unabated. It killed ROTC programs on many campuses. It is felt by military officers, such as myself, who have applied to attend law school under military scholarships. And it can be seen in the response to Operation Iraqi Freedom.

Even if the military's "Don't Ask Don't Tell" (DADT) policy were ended, plaintiffs would claim other reasons for banning the JAG. This isn't a First Amendment case about reforming the military. It's an anti-First Amendment case based on hatred for the military. As such, it should fail.

Raymond Takashi Swenson, Lt. Colonel, USAF (Retired) is a former JAG officer and an environmental attorney. He has served as adjunct faculty at UC Berkeley and other universities in California, Nebraska, Utah and Idaho. The opinions expressed here are his own.

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