Kagan & Gay Rights, Part Two

Andrew Sullivan (rather, his readers) beat me to the punch, but the point bears repeating: when Kagan eventually faces criticism for her role in FAIR v. Rumsfeld, it’s wrong, and needlessly inflammatory, to frame the controversy as about whether law schools can kick out military recruiters. It was about the right of law schools to bar from campus recruiting events any employers whose hiring practices contravene long-settled rules. Some background.

The state of the law since the ’90s has been that, when a school bars military recruiters from campus, for any reason, they forfeit federal funding for that school (“The Solomon Amendment”). In 2001, the Bush administration interpreted the Amendment so that when any subsidiary school at a university bars military recruiters, the entire university forfeits federal funding. Since the rules adopted by all ABA-approved law schools forbid discrimination on the basis of sexual orientation, and the military explicitly does so discriminate, to vindicate that policy, law schools had previously been happy to take the hit. But in the case of my school, NYU, the amount of federal funding that NYU Medical School stood to lose far exceeded the entire operating budget of the law school, thus depriving the law school’s sacrifice of its nobility, and its practicality.

Subsequently, all law schools grudgingly accepted military recruiters on campus — while immediately filing a challenge to the Amendment’s recontextualization. That challenge failed, resoundingly, although one of my former professors claims he could’ve won it (he probably could’ve, the man is incredible).

Who you cast as the villain in this story, then, turns largely upon when you start the telling. I’d argue that we should start, well, at the beginning. In that context, it becomes clear that the military was never singled out by law schools for exclusion from campus hiring. Military recruiters were barred because they ran afoul of a rule of general application, and the law schools did no more than honor a pre-existing commitment to their students.

Further — and it’s not clear that this helps the law schools’ case, or Kagan’s — all law school deans took the breach of that commitment quite seriously, and continue to today. On any given recruiting day at NYU Law, students can find rainbow ribbons on all students’ backpacks (voluntarily), a “pride” flag in the main halls of both buildings, and a heartfelt e-mail from the dean (Ricky Revesz, a great guy) in their inbox, apologizing for losing the FAIR case, and explaining why we had to accept discriminatory employers for at least another year. This wasn’t about sticking it to the military. It was about doing right by our students.

It goes without saying that few (if any) students interviewed with with the military, rendering the government’s victory largely Pyrrhic.

Schools should be applauded for standing by their students and supporting equality, even and especially as applied to a disfavored group. Similarly, this should bring the continued effects of “Don’t Ask, Don’t Tell” into stark relief. The policy doesn’t just deprive the military of gay soldiers; it deprives the JAG Corps of talented lawyers, gay or straight, who won’t suborn discrimination.

It’s on this ground that the issue should be fought when it comes to Kagan. Is denying gay men and women jobs because of their sexuality “discrimination”? If it is, do we forgive discrimination because it’s done by the military? And if the answer, again, is yes, do we want to hold a Supreme Court nominee hostage because she’s not willing to accept discrimination in her school?

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