February 14, 2007

Columbia's Ameliorative Efforts

by PG

Columbia's method of coping with Rumsfeld v. FAIR, in which the Supreme Court unanimously upheld the Solomon Amendment's requirement that law schools accept military recruiters or forfeit federal funds for themselves and their associated universities, thus far consists of buses to D.C. and Boston and an e-mail from the dean. To wit:

As part of the Law School's Solomon Amendment amelioration efforts, Columbia is working with other area NYC law schools to participate in the Servicemembers Legal Defense Network Lobby Day on Monday March 26. There will be a bus leaving Fordham Law (140 West 62 Street) on Monday March 26 at 6am and returning to Fordham Law by 6pm. The luxury bus (air conditioned, reclining seats, toilet, sound system, dvd player) and participation in the day's activities is free of charge for Columbia students. ...
As part of the Law School's continued Solomon Amendment amelioration efforts, we will be sponsoring a group of students to attend a conference on the United States military's Don't Ask Don't Tell policy. The conference is taking place at Harvard Law School on March 2nd and March 3rd.
The basic impulse behind this program is correct: the judiciary has proven unhelpful in remedying an ill, so all efforts will have to go toward legislative change. Of course, Congress has been getting lobbied for years to change its policy on homosexuals in the military, but the combination of a war in which we're lowering standards* and our allies have gay soldiers (the presence of women and homosexuals doesn't seem to have affected Israel's ability to whup ass), growing acceptance of homosexuality within the military as well as general society, and a newly Democratic Congress may make this the year that Don't Ask, Don't Tell is repealed, though at the moment only 112 representatives are co-sponsoring Meehan's Military Readiness Enhancement Act. I question how much undecided politicians will listen to lobbyists who are connected to neither the military nor the congressperson's district, and therefore whether such a lobbying effort is the best use of our resources.

Dean Schizer's message was as follows:

Over the next few weeks, the U.S. Army, U.S. Navy, and U.S. Air Force Judge Advocate General will conduct interviews at the Law School. As you know, Columbia has a long-standing nondiscrimination policy, under which employers who use Law School facilities in recruiting are asked to pledge that they will not discriminate based on numerous factors, including race, sex, religion, or sexual orientation.

The military's "Don't Ask, Don't Tell" statute cuts against our strongly held conviction that employer hiring should be solely based on merit, and without regard to factors including race, sex, religion, and sexual orientation. The U.S. Army, U.S. Navy, and U.S. Air Force Judge Advocate General are being permitted to interview at the Law School pursuant to federal legislation known as the Solomon Amendment. Under that legislation, a law school's refusal to permit the military equal access to recruit on campus can result in the withholding of a wide range of federal funding to an entire university.

As a community, we are mindful of the military's status as an institution that protects the nation. We admire the courage and self-sacrifice of our troops and appreciate the particular contributions of military lawyers in an age when national security and personal liberty must be balanced in difficult new contexts. We believe strongly that those of our students who choose careers in the military can offer invaluable service to the nation. This very certitude renders it even more acutely troubling that our gay, lesbian and bisexual students are precluded from doing so, due to the "Don't Ask, Don't Tell" statute.

I encourage you, as future advocates, to participate in a robust, vibrant, public conversation around the issues raised by military recruiting. It is the role of a great law school -- including both its students and faculty -- to explore contemporary legal issues in an open, collegial, and thoughtful way. We urge you to examine this issue through the various ameliorative programs at the Law School and the greater university during the course of the semester and in conversations with your peers, professors, and administrators.

If the law school wants to embody and not just mouth its simultaneous support for the military and for gay students, encouraging students interested in JAG service to interview off campus still seems like the best option. Instead of creating tension between gay students unable to serve openly and their straight peers who would like to interview, or making the latter feel guilty, the law school could help both groups by making the off-campus interview option easier, and the on-campus interview an unused option. Thus the military technically is able to violate Columbia's nondiscrimination policy, but it will gain no recruits in doing so -- only at their own offices.

* Ironically, now that same-sex sexual activity no longer can be criminalized, the military is increasing the number of moral waivers it gives recruits with criminal records, including offenses like aggravated assault. I'm all in favor of letting people busted for possessing a bag of pot or running a red light join the military, but inviting folks who have previously shown violent tendencies is not a great way to avoid future Abu Ghraibs.

February 14, 2007 01:05 PM | TrackBack

a newly Democratic Congress may make this the year that Don't Ask, Don't Tell is repealed

Remember that DADT was enacted by a Democratic Congress. If there has been any announcement from the new leadership that party policy has changed and military equality is on the legislative agenda, I've missed it.

Columbia's PR efforts are simply an exercise in blame-shifting. Its moral position on this issue is the same as the military's: both are responding to a statutory imperative. If anything, Columbia is more culpable, because the military is acting pursuant to direct mandate, while the university is just chasing money. The only meaningful ameliorative effort would be to forego the federal funding and charge the students tuition sufficient to cover the loss. Absent that, the only morally consistent position for law students is to forego all Columbia-related on-campus interviewing and placement services, not just for the military.

Posted by: Tom T. at February 15, 2007 07:41 AM

DADT was enacted by a Democratic Congress as improvement on the conservative-preferred regime of witchhunting homosexuals out of the military (a regime, alas, that was not entirely eradicated despite being formally prohibited). When you consider the historical treatment of homosexuals, a policy of just not asking was, at the time, an improvement. However, now that:
homosexual sex no longer is a crime;
we have seen how a culturally-similar allied nation (the UK military, which stopped discriminating against gays pursuant to a 1999 European Court of Human Rights decision) has not been hurt by gays' serving openly;
we are at war and in need of additional soldiers, not to mention translators and other assistants (hence the Military Readiness Enhancement rhetoric) --
a new Democratic Congress can make ending discrimination one of its commitments. Howard Dean and other leaders have been focusing on issues that affect a larger number of LGBT folks, such as a trans-inclusive civil rights bill that would prohibit discrimination on the basis of sexual orientation and gender identity, and new hate crimes legislation that would federalize crimes committed for those reasons. DADT matters to law schools, but simply isn't as big a deal on a practical level for most of the queer community as hate crimes and ENDA.

I find the argument that the poor gay-lovin' military is being victimized by a homophobic Congress to be utterly laughable. The military is led by the Commander-in-Chief George Bush, and those that Bush appoints to DOD positions. Sen. Wyden already has demanded that Secretary Gates state his position on DADT, and has said that he finds "extremely troubling" Under Secretary of Defense Michael Dominguez's position that he "sees no need to change." Thankfully the rank-and-file seem to have more sense than the Pentagon brass, but please don't claim that military leaders are comparable to law school deans when it comes to acceptance of homosexuality, and that if only Congress weren't so homophobic, Rumsfeld & Co. would have been delighted to have openly gay soldiers.

As for foregoing federal funding, many of the law schools were willing to do so for themselves because they receive so little federal money anyway. That's why the Republican leadership revised the Solomon Amendment in 2001 to up the ante by saying that funding would be stripped from the rest of the university as well. In other words, Columbia Law School's enforcement of its anti-discrimination policy would lead to the medical school, engineering and science departments losing money as well. No more DHS research grants to study bioterrorism (something my cousin did as a Columbia undergrad).

Posted by: PG at February 15, 2007 02:59 PM

I find the argument that the poor gay-lovin' military is being victimized by a homophobic Congress to be utterly laughable.

Agreed. Which is why I think that devoting one's activism efforts toward inconveniencing the military, which cannot change and does not even want to, are nothing more than empty political theater.

Congress has the power to change DADT, and theoretically has the inclination to do so now that the Democrats are in power. But they're not doing anything because they're under no pressure to do so. I remember the 1993 DADT battle well; the Democrats were utterly blindsided that the gay community might want to assert its right to equality in this regard, and the Clinton Administration and Congress hastily crafted DADT as the minimal effort needed to shove gay people off the national stage, so the administration could get back to the issues that it actually considered more important and less touchy. The same dynamic is true in 2007; the Democrats would prefer to ignore gay issues, because they think that many/most voters still equate "gay" with "fringe" or even "immoral." Lobbying and activism directed at Congress are the only efforts that are going to lead to change on this issue. Bravo to the students who are heading down to DC to do so.

Columbia could be leading these efforts. It could be lobbying Schumer and Clinton. It could be organizing alumni. It could be divesting its investments in companies that do business with military. And yes, it could be defying the Solomon Amendment. Most schools couldn't, but Columbia has a vast endowment. It could even announce its intended defiance a year in advance, so that students affected by cuts could transfer. Certainly, some of these options present pain for the university, which means that it won't undertake them unless it is pressured to do so. And that won't happen as long as Columbia is perceived as a good guy even though it's doing nothing. (And renting a bus to let students do the heavy lifting is essentially nothing).

Posted by: Tom T. at February 17, 2007 12:11 PM

I'm confused by the claim that the Dems were "blindsided" by the idea of equality, given that Clinton had campaigned on a platform that included ending the military's then-existing policy of asking all recruits about their sexual orientation. If Clinton was blindsided by anything, it was the strength of the military leadership's opposition to gay soldiers. DADT was the compromise: no more asking, and in return gay soldiers had to do no telling. (The official policy against harassment has been very poorly enforced.)

Congress has the power to change DADT, and theoretically has the inclination to do so now that the Democrats are in power. But they're not doing anything

Er, what do you call Meehan's Military Readiness Enhancement Act? He introduced it in 2005 and saw it get buried by the Republicans in subcommittee. It's nonetheless picked up plenty of bigname Democratic cosponsors in the past year, including Pelosi and Conyers, and had even more sign up early, including now-Sen. Sanders, and Reps. Shays, Waxman, Rangel, Dingell and Emanuel. Meehan's now talking it up to get it revived by a Democrat-controlled Congress. If it gets out of committee, I certainly would expect to see a Senate counterpart introduced, with both Schumer and Clinton as cosponsors.

It could be divesting its investments in companies that do business with military.

Columbia doesn't have an existing policy that prohibits investment in companies that may discrimination against gay people, so the divestment you propose really would be singling out the military and anyone associated with it. In contrast, Columbia Law (and almost all other ABA approved schools) must have an anti-discrimination policy that includes sexual orientation, which policy is being negated by Congress's demand that the military be treated differently than other discriminatory employers.

I've already stated my feeling that a bunch of random, non-veteran law students unconnected to a Congressman's home district will not be helpful in a lobbying effort. If gay students -- the ones suffering discrimination -- were pushing for CLS to take the actions you advocate, I would take those ideas more seriously, but the fact that they aren't leads me to believe that they don't consider them useful.

Posted by: PG at February 17, 2007 04:42 PM
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