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Power Over Principle
Published on Saturday, September 7, 2002 in the New York Times
Power Over Principle
by George Fisher
 

STANFORD, Calif. Every fall law firms and government agencies send recruiters to campus to hire America's best young lawyers. This year there will be a new team of recruiters at many law schools: those from the Judge Advocate General's Corps of the United States military. Last month Harvard Law School announced that it would admit JAG Corps recruiters to campus.

The change is not a result of the nation's reborn patriotism in the wake of Sept. 11. It is a victory for the military, but it is not a victory we should applaud. It represents a triumph of power over principle educational principles that are especially meaningful to law schools.

For more than a decade, Harvard Law School had resisted demands by military recruiters to interview students through the school's career placement office. Almost all American law schools including Stanford, where I teach took the same stance. They did so not because law professors or law students are unpatriotic, but because the military rejects qualified students who wish to serve if they are openly lesbian, gay or bisexual. For the last several years, however, the military has increased pressure on law schools to allow them to recruit on campus. Now that Harvard has succumbed, other schools are likely to follow.

The military's "don't ask, don't tell" policy means that those students who say they are gay or bisexual or whose sexual conduct becomes known are excluded. Since at least 1990, the vast majority of American law schools have withheld career placement services from employers that discriminate on the basis of race, sex, religion, national origin, disability or sexual orientation. This policy did not take aim at the military. It applied to all employers. Nor did this policy stand in the way of military recruiters. In most law schools, student groups have long been free to invite military recruiters to campus. But law school policies have barred the military or any other employer that discriminates wrongfully from official access to the school's job-placement office.

So why have Harvard and other American law schools changed their policy? The reason, almost everywhere, is money.

In 2000 the Department of Defense issued regulations reinterpreting federal law. The regulations say that if any part of a university denies access to military recruiters, the entire university will lose an array of federal funds. In May, the Air Force informed Harvard it was no longer content to be invited to campus by students. It demanded that the school allow military recruiters to use the school's career placement office.

Today any law school that chooses to hold firm against discrimination threatens the financial stability of the entire university. At Harvard the dean of the law school said the university was in danger of losing over $300 million in federal funds if the law school did not cooperate. The dean of the University of Southern California's law school said the school's policy, now revoked, could have cost the university between $300 million and $500 million. Across the country, those law schools that have not yet abandoned their policies face similar consequences.

What makes these tactics worse is that the JAG Corps gains nothing by discriminatory practices. The military says openly lesbian, gay or bisexual recruits threaten "unit cohesion." On the battlefield, this justification is merely improbable; in a JAG Corps law office, it is absurd. For decades America's top law firms and law schools have banned discrimination on the basis of sexual orientation. Nowhere has collegiality or reputation suffered as a result.

For America's law schools, this is a matter of educational policy. They welcome all viewpoints and all thoughtfully expressed opinions. Yet the military's "don't ask, don't tell" policy discriminates against certain students precisely on the basis of expression.

Law schools have two goals: to teach students how to interpret and apply the law, and to teach them how to stand in defense of it. For years law schools have stood in defense of the anti-discrimination principles they teach. Now the military is forcing them to bend their principles and the cost falls not on the schools but on their students.

George Fisher is a professor at Stanford Law School.

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