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Law Schools Discriminate Against Military

Many Americans are clamoring for public service opportunities in the wake of Sept. 11.  Local and national news items indicate increasing interest in AmeriCorps, ROTC programs, federal law enforcement jobs, and countless volunteer programs.

And many organizations and public leaders are providing new or improved programs to harness the enthusiasm of this newfound wellspring of patriotism and civic-mindedness.

However, in stark contrast to these opportunities, a significant portion of America's law students confront faculty-imposed limits on military recruiting that severely restrict students' efforts to explore military law careers. These policies do not reflect well on law faculties, and they severely disadvantage the nation when military, law enforcement and policy careers are in greatest demand for high-caliber talent.

Many top-flight law schools adopted their anti-military recruiting policies to escape perceived complicity in the Clinton administration's "don't ask, don't tell" compromise. Congress responded by amending the Omnibus Consolidated Appropriations Act of 1997 with a provision that requires law schools to provide equal access to students for military and civilian recruiters. This "Solomon Amendment" essentially reminded faculties, under threat of withholding federal funding and education loans, that a student's career choice is his or hers alone.

In response, many faculties justify their policies by invoking an obligation as members of the Association of American Law Schools that prohibits the use of career services facilities by employers who discriminate based on sexual orientation. Unfortunately, these policies do not comport with Congress' superior charge to provide military and civilian recruiters with equal access to students.

Anti-military recruiting policies most frequently operate by tying the hands of the school's career services professionals. The faculty may prohibit them from maintaining any military career information or databases, advertising the recruiters' visits or soliciting interested students to fill the recruiters' interview schedules. Some faculties take an additional step and prohibit all communications between the career services office and military recruiters. Instead, recruiters must coordinate their visits with a senior administration member (often an associate dean) who may not be permitted to inform interested students about the recruiters' visits. It becomes a student's obligation to divine that military law careers are available, that relevant career information exists beyond the career services office, and that recruiters conduct on-campus interviews.

Yet faculties practically demand that these same career service professionals provide red-carpet treatment for civilian employers, particularly prestigious firms who enhance the school's reputation by hiring their students. Hallway fliers announce firms' à la carte dinner information sessions. Personalized e-mail notices inform students about private employers on-campus interview schedules. And students who want career counseling can pour over volumes of information with numerous career professionals. These procedural differences reflect decidedly unequal treatment of military and civilian recruiters.

No doubt these law schools believe themselves committed both to equality and observing federal law, but for recruiting policies to be legal they must provide students equal opportunities to gain civilian and military employment. Certainly a legalistic study could provide a definition of equal employer access to students, but I suggest that law schools troubled by their perceived complicity in aiding military recruiting turn to other means to determine what constitutes equal hiring opportunities. The most practical advice I received during my first year of law school — legal processes are not always the most desirable remedies — is applicable here.

It may obviate the need to find a Solomon-compliant solution if faculties see their first priority as providing a politically neutral education that gives all full tuition-paying students every opportunity to find the best job for them. The debate on the propriety of a specific congressional statute is left to the political realm, and the school avoids implementing its own discriminatory practice. But if a faculty finds it necessary to pronounce on a political issue it may still avoid an unequal recruiting policy by inquiring whether the remedy is equally attractive to non-military employers. The policy may be unequal if prestigious firms balk at such restrictive procedures, or students argue that career service professionals are indispensable to their job search, or the faculty believes their students' hiring potential would decrease.

Further, anti-military recruiting policies discourage students from engaging in the political discourse that ought to be the primary means of challenging unpalatable public policy. Regardless of how undemocratic or unrepresentative one believes our current political system to be, it is a far better solution than most others have found. But students cannot independently assess that statement or judge deeply troubling issues in their full complexity if faculties stifle independent thought and public debate by pronouncing conclusively on a political issue. If "don't ask, don't tell" is the school's real concern, faculty and students may address that issue head-on and not be pacified by the belief that their own discriminatory practices in a different field remedy a law's wrongs. Among institutions of higher education, law schools in particular bear the burden of teaching that lesson.

Non-discrimination polices are undeniably admirable, and private organizations like the American Association of Law Schools should certainly encourage their members to set high standards. But when those private standards contravene public law they must yield to the law as the better remedy for our political system's broader interests. Anti-military recruiting policies work a disservice not only on students, but also on the nation. Now is not the time to work this injustice on our civil society.

David G. Delaney is president of the Boston College Law School Veterans Association and a 1994 graduate of the U.S. Military Academy. He served 5 1/2 years as a military police officer in the U.S. Army.

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