GAINESVILLE, Fla. — The U.S. Supreme Court heard arguments Dec. 6 in Rumsfeld v. FAIR, a case that will decide whether the nation’s law schools can turn military recruiters away from campus because of discriminatory policies toward gays.
No matter what the court decides, one University of Florida Levin College of Law professor says law schools should keep their doors open to military recruiters – because this may be the quickest way to reform Pentagon policy.
“In general, law schools are right to turn away recruiting efforts from employers who discriminate,” said professor and former Air Force officer Diane Mazur. “But the military isn’t just any employer, it’s an institution of constitutional significance. When we shun the military, we deny ourselves the ability to influence the Pentagon’s policies.”
Mazur discusses the case in a paper soon to be published in the Journal of National Security Law and Policy.
Rumsfeld v. FAIR involves a challenge to the Solomon Amendment, a law that strips federal funding from colleges that do not allow the military to recruit on campus. The measure has created a dilemma for law colleges, because the American Association of Law Schools, the accrediting agency for these schools, has a long-standing policy prohibiting on-campus recruiting by employers who discriminate against gays. Because of the Solomon Amendment, most law schools do currently permit military recruiting on campus.
A group representing approximately 25 law schools and law faculties filed suit challenging the Solomon Amendment on the grounds that it violates law schools’ rights of free expression.
Mazur is a vocal opponent of military policies discriminating against gays. Still, she argues, the battle over on-campus recruiting has led to a “spiral of shunning” that broadens the cultural gap between the legal community and the military.
Since the early 1980s, civilian courts have deferred to the Pentagon on most cases involving the rights of individual soldiers, Mazur notes. The reason: judges see the military as a separate society, run according to imperatives that legal scholars aren’t qualified to understand. If legal scholars had a closer relationship with the military, Mazur says, they would be emboldened to question its policies in greater detail – and the military might be more inclined to listen to their opinions.
“We can engage the military without supporting its policies,” Mazur said. “We don’t discourage our students from working for legislators who voted for these policies, or clerking for judges who upheld them.”
To exert a greater influence on the military, Mazur says, law schools should not only welcome recruiters – they should encourage more research into military law.
At present, Mazur says, law schools produce only a trickle of scholarship on military law topics other than “Don’t Ask Don’t Tell,” almost all of it written by law professors who are also military veterans. Ongoing wars in Afghanistan and Iraq have brought up new issues in military law – such as the uses of the National Guard and the proper role of civilian contractors in combat – that beg for analysis by scholars from a wide range of backgrounds.
“Law schools ought to be the principal players in legal reform of any nature,” she said. “Keeping recruiters at arms’ length may allow us to feel that we’re standing up for our principles, but it’s costing us our ability to take part in that reform.”
Professor Diane Mazur can be reached at (352) 273-0953 or by e-mail at email@example.com.
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