Free Speech and Campus Discrimination

(anyone who has read this blog a lot may recognize parts of this argument, but it is a new "mix.")

The Law School law suits against military recruiting are not really about free speech. The lie about the free speech "gay rights" argument is that the ABA rules require banning discriminating employers for accreditation (though it is currently "interpreted" to allow lawful discrimination). Law schools that would want to allow the military to stay will have to ban them in order to keep accreditation from the ABA. Without the Solomon Amendment, there would still be no "freedom," it would just be the ABA deciding the policy for all of the schools. And before we talk about the ABA being private and therefore different from government requirements, almost all states require ABA accreditation in order to sit for the bar exam, so it would still be state action, only this time requiring that the military be banned.

http://www.abanet.org/legaled/standards/chapter2.html

Standard 210. EQUALITY OF OPPORTUNITY.
(a) A law school shall foster and maintain equality of opportunity in legal education, including employment of faculty and staff, without discrimination or segregation on ground of race, color, religion, national origin, sex, or sexual orientation.
(b) A law school may not use admission policies or take other action to preclude admission of applicants or retention of students on the basis of race, color, religion, national origin, sex, or sexual orientation.
(c) The denial by a law school of admission to a qualified applicant is treated as made upon the ground of race, color, religion, national origin, sex, or sexual orientation if the ground of denial relied upon is (1) a state constitutional provision or statute that purports to forbid the admission of applicants to a school on the ground of race, color, religion, national origin, sex, or sexual orientation; or (2) an admissions qualification of the school which is intended to prevent the admission of applicants on the ground of race, color, religion, national origin, sex, or sexual orientation though not purporting to do so.
(d) The denial by a law school of employment to a qualified individual is treated as made upon the ground of race, color, religion, national origin, sex, or sexual orientation if the ground of denial relied upon is an employment policy of the school which is intended to prevent the employment of individuals on the ground of race, color, religion, national origin, sex, or sexual orientation though not purporting to do so.
(e) This Standard does not prevent a law school from having a religious affiliation or purpose and adopting and applying policies of admission of students and employment of faculty and staff which directly relate to this affiliation or purpose so long as (i) notice of these policies has been given to applicants, students, faculty, and staff before their affiliation with the law school, and (ii) the religious affiliation, purpose, or policies do not contravene any other Standard, including Standard 405(b) concerning academic freedom. These policies may provide a preference for persons adhering to the religious affiliation or purpose of the law school, but shall not be applied to use admission policies or take other action to preclude admission of applicants or retention of students on the basis of race, color, religion, national origin, sex, or sexual orientation. This Standard permits religious policies as to admission, retention, and employment only to the extent that they are protected by the United States Constitution. It is administered as if the First Amendment of the United States Constitution governs its application.
(f) Equality of opportunity in legal education includes equal opportunity to obtain employment. A law school should communicate to every employer to whom it furnishes assistance and facilities for interviewing and other placement functions the school's firm expectation that the employer will observe the principle of equal opportunity and will avoid objectionable practices such as(1) refusing to hire or promote members of groups protected by this policy because of the prejudices of clients or of professional or official associates; (2) applying standards in the hiring and promoting of these individuals that are higher than those applied otherwise; (3) maintaining a starting or promotional salary scale as to these individuals that is lower than is applied otherwise; and(4) disregarding personal capabilities by assigning, in a predetermined or mechanical manner, these individuals to certain kinds of work or departments.Interpretation 210-1:Schools may not require applicants, students, or employees to disclose their sexual orientation, although they may provide opportunities for them to do so voluntarily. (August 1994; August 1996)
Interpretation 210-2:This Standard does not require a law school to adopt policies or take actions that would violate federal law applicable to that school. (August 1994; August 1996)Interpretation 210-3:As long as a school complies with the requirements of Standard 210(e), the prohibition concerning sexual orientation does not require a religiously affiliated school to act inconsistently with the essential elements of its religious values and beliefs. For example, it does not require a school to recognize or fund organizations whose purposes or objectives with respect to sexual orientation conflict with the essential elements of the religious values and beliefs held by the school. (August 1994; August 1996)
Interpretation 210-4:Standard 210(f) applies to all employers, including government agencies, to whom a school furnishes assistance and facilities for interviewing and other placement services. However, this Standard does not require a law school to implement its terms by excluding any employer unless that employer discriminates unlawfully. (August 1994; August 1996)

That interpretation is based solely on the existence and threat of the Solomon Amendment. The plain words of the ABA requirement is that law schools must prevent discriminatory employers from having access to students through their placement services.

And even if it is true that the ABA won't change the "interpretation" of the plain words of its rule, we are still in a position where a private organization will have the ability to exclude military recruiters from campuses using state pressure for the bar exam, including on taxpayer funded campuses.

Plus, the military has policies that discriminate based on many things, not just sexual orientation. You can't be too old, too young, too fat, too thin, too sick, color blind, too weak, too dumb, physically or mentally handicapped, need medication such as ritalin, and for many jobs, female. Someone with asthma but no overt symptoms can be excluded solely based on one doctor's note in medical records. You can even be discriminated against for serving too long, or not getting promoted fast enough. Most of the above areas will not prevent a lawyer from doing his job well, and therefore can not be supported as legitimate reasons to exclude.

For example, why wouldn't the policy implications of the American's with Disabilities Act be equally applicable to the military? There is nothing about the general duties of a JAG attorney that should preclude service, other members of the military can be "non-deployable" and not separated and have a profile against physical training, and reasonable accomodation is the law of the land for all other employment. The Army is currently sending amputees back to combat, but a wheelchair bound attorney can't join and serve as a military lawyer. Why don't the Law Schools go after this issue as well? It still violates their own anti-discrimination policies.

I think that the law schools need to be more intellectually honest about discrimination policies. Discrimination is either wrong, and they should attack the military on all fronts where it discriminates and not just one pet area ...or admit that this is merely politics, not about what is "right."