The JAG Corps has gained unprecedented popularity with millions of television viewers, but it has few friends among law professors. Throughout the 1990s, law schools barred their doors to JAG recruiters in opposition to the military's "don't ask, don't tell" policy regarding homosexuality. The schools only gave access to the JAGs after Congress passed the Solomon Amendment, which allows the government to take away a university's federal funding if its law school bars military recruiters.
Unable to abide JAG recruiting yet unwilling to give up federal money, several law schools and a group of left-wing law professors swung back with-what else?-lawsuits contending that the Solomon Amendment violates their First Amendment rights to free association.
But the law does not compel schools or professors to associate with anyone. The only "association" involved takes place between the recruiter and the interviewee, and is purely voluntary and consensual. If students are not interested in the military's pitch, they don't need to listen to it. If the JAG recruiter's interview room is empty all day, or filled with protesting students, it would look like a clear repudiation of the military's hiring policies-and would not be prohibited by the Solomon Amendment.
Moreover, the First Amendment only protects "expressive association"-affiliations between people for the purpose of conveying a message. The classic violation of the freedom to associate is a law requiring a Catholic parade organizer to allow gays to march in the parade. The Supreme Court held in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston that a parade is expressive, that each individual component is a note in a "concert" that is the arrangement of the entire procession.
It seems a stretch to say that the selection of employers to participate in on-campus recruitment constitutes a "concert" or even a "parade" with a discernible message to the onlooker. No one tries to glean a message from reading the long list of law firms, government agencies, and public interest groups that participate in a school's recruitment season-because it contains none. No one could assume that a school endorses the policies of organizations that recruit on campus: the ethical rules of the legal profession make it clear that providing representation for a client does not constitute an endorsement of the client's views. On-campus recruiting is about providing a market where clients can be matched with lawyers, which is even further removed from endorsement than actual representation.
Moreover, the lawsuits are bad from a pedagogic perspective. As Professor Dershowitz wrote in these pages last year, "Engendering in students a willingness to take on unpopular causes . . . is a central component of legal education." Indeed, it is a central principle of legal ethics: The ABA's Model Rules of Professional Conduct state that "legal representation should not be denied" to those "whose cause is controversial or the subject of popular disapproval." That is why schools allow recruiting by district attorneys' and public defenders' offices, even though many people find the death penalty and murder at least as odious as discrimination against homosexuals. Yet the law schools aim to block the JAG Corps from an important avenue of obtaining representation precisely because they "disapprove" of the military's policies. It is the schools' approach, not the Solomon Amendment, that undercuts one of the major messages of legal education.
The professors insist that they are not taking a stand against the military; they merely want to "evenhandedly" apply their generally-applicable anti-discrimination policies, which bar cooperation with employers that discriminate. Ironically, the schools' anti-discrimination policies undercut rather than strengthen their case.
The very same sentence of the policies that bars the schools from dealing with employers who discriminate on the basis of "sexual orientation" also applies to discrimination on the basis of "age, handicap or disability"-all grounds on which the JAG Corps overtly discriminates. The schools are not insisting that the military accept wheelchair-bound servicemen or 50-year-old lieutenants-though one presumes that students of such description feel as excluded by JAG recruiting as the schools claim homosexual students do. The schools' silence about JAG Corps violations of other parts of the non-discrimination policies shows the schools are not compelled by their internal rules to resist military recruiting. It also shows a recognition that broad policies that make sense with respect to employment by private law firms may be inapplicable to the special case of the armed forces.
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