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Professor Eugene Kontorovich recently argued on these pages that when law schools and law professors recently sued the military, they abandoned their ethical responsibility to teach law students “to defend odious and unpopular clients” [" Put Ethics on the Front Line," Sept. 22, 2003]. In reaching the startling conclusion that law professors have an ethical obligation notto sue the government in support of law schools’ nondiscrimination policies, Kontorovich accuses the plaintiffs of a “bitter,” “liberal,” and “collective abandonment of a particular client,” namely, the military. At issue in the suit is the Solomon Amendment, a federal law that threatens to cut off virtually all federal funds to entire universities unless their law schools allow the Judge Advocate General’s Corps access to school recruiting programs. Because of the military’s “don’t ask, don’t tell” policy, which since 1993 has forbidden openly gay and lesbian members of the armed forces from serving, many law schools restricted JAG recruiting prior to the Solomon Amendment. BANNING DISCRIMINATION The policy at Boston College Law School, whose Coalition for Equality is a plaintiff in the lawsuit, is typical. It reads: “Boston College Law School is committed to a policy against discrimination and harassment based on age; sex; race; color; religion; national origin or ancestry; sexual orientation; disability; or marital, family or military status. It is expected that employers using the services of the Career Services Office will comply with this policy and take positive steps to ensure that no discrimination or harassment occurs in the hiring, promotion, compensation or work assignments of Boston College Law School students. The Law School will extend use of its facilities only to those employers whose practices are consistent with this policy.” Almost every accredited law school in the country has a similar policy. But due to the Solomon Amendment, those schools can no longer adhere to their own rules. A common assumption is that the military recruitment debate is polarized: One side disfavors recruiting because it makes schools complicit in bigotry, and the other side disfavors the ban on military recruiters because it is unpatriotic. If framed that way, one could understand the conclusion that a limitation on military recruiting constitutes an “abandonment” of the military. But this paradigm distorts law schools’ historic efforts to balance the important interests at stake in the debate. Most law schools have never disallowed military recruiters from accessing or recruiting their students. To the contrary, for years prior to the enactment of the Solomon Amendment, the very same law schools that are now suing the government worked to balance the important educational interest of supporting a policy of nondiscrimination against all students, including those who are gay or lesbian, with the interest in providing a steady stream of talent to the military. Law schools used different tactics to strike this delicate balance. Some organized JAG interviews off campus at nearby hotels; some facilitated the arrangement of interviews only through their dean’s offices, rather than through career services facilities; and some refused to assist in posting JAG fliers, while also refusing to allow them to be removed once posted. Regardless of the tactic used, however, prior to the Solomon Amendment, the only facilitation military recruiters were denied, if any, was inclusion in schools’ official recruitment programs. In 1995, Congress decided that law school facilitation efforts were not good enough. It passed the Solomon Amendment, threatening to cut off Department of Defense funds to schools that restricted military recruiting. The legislative history makes it clear that sponsors were not concerned with recruiting. Rather, they wanted to send a chilling message “over the wall of the ivory tower” to “treat our Nation’s military with the respect it deserves.” Because most law schools do not receive Department of Defense funds, most continued to restrict JAG recruiting. In 1997, Congress expanded the punitive scope of the Solomon Amendment to include the threat of loss of funding from the departments of Labor, Health and Human Services, Education, and Transportation. Still, most law schools held firm in their stance against discrimination. TARGETING LAW SCHOOLS In 2000, however, the Department of Defense directly targeted law schools. It interpreted the Solomon Amendment to cut off all federal funds to an entire university if any part of the university restricts military recruiters. Thereafter, it not only required the general “access” condition set forth in the statute, but also demanded “equal” access on par with that given to nondiscriminatory employers. Under intense pressure from their parent universities, law schools generally lifted restrictions on military recruiting in violation of their nondiscrimination policies. The painful irony is that, in many cases, military recruiters have gained nothing from the Solomon Amendment but a largely symbolic inclusion in official recruitment programs and a marginal increase in convenience. Although military recruiters cannot now be denied access to on-campus recruitment programs, in many cases, law schools do not have facilities that accommodate on-campus recruiting. Accordingly, what the Solomon Amendment has purchased with its multimillion-dollar chokehold is the ill-will of prospective recruits who disagree with it, and the ability of military recruiters to sit in the same off-campus hotel at the same conference table around which they might have already sat; only now, they can sit there at the same time as other recruiting employers. While advantages of the Solomon Amendment for military recruiting have been minimal, its effect on law schools has been tantamount to institutionalizing a policy of segregation. Law schools have been forced to carve out of their nondiscrimination policies any meaningful protection for gay and lesbian students in hiring programs. As a result, gay and lesbian law students attend law school career fairs around the nation as second-class citizens: no matter their credentials, no matter their patriotism, to one large, prestigious employer, they need not apply. Meanwhile, students in other groups protected by campus nondiscrimination policies are left wondering when, if, and how their on-campus hiring protections will similarly be eviscerated (and it should not be forgotten that one of the categories that receives protection from these policies is “military status”). THE OTHER ETHICS PROBLEM The compromise of nondiscrimination policies with respect to gay and lesbian students has forced law schools into the exact position deemed so abhorrent by Kontorovich: being unable to hold themselves up as a model to their students of the central ethic of “representation for all . . . no matter how foul their crimes or how strange their views.” At one time appropriately free to balance the interests themselves, law schools are now forced by the federal government to model an abandonment of their stated commitment to fair treatment of gay and lesbian students. This begs the crucial question: How is collectively abandoning the gay and lesbian client any different than allegedly abandoning the military? Educational institutions are not mere empty shells. They uphold and instill important values. Nothing is more disruptive to the flow of ideas necessary to cultivate an enriching educational environment than discrimination, be it against ideas, or people, or both. And there is no better way for law schools and law professors to inculcate in their students the doctrine of representation for all than to challenge discrimination, even if such a challenge requires suing the federal government. Law schools suing the federal government to support and protect their most vulnerable students are not abandoning their ethical responsibilities. Quite the contrary, they have taken a deeply principled stance in support of their responsibility to teach prospective attorneys the value of equal opportunity and diversity as critical components of a just and fair America. Their fairness and courage deserves the profession’s highest praise. Kara S. Suffredini, an associate at Updike, Kelly & Spellacy in New Haven, Conn., is vice co-chair of the board of directors of the National Lesbian and Gay Law Association. She does not represent any party in the suit against the federal government, but in writing this article received input from one of the plaintiffs.

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