Friday, March 10, 2006
Law School Politics Bubble Up to the Supreme Court
The big legal news this week is the U.S. Supreme Court's decision in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) that held that Congress has the power to require law schools to permit military recruiters on campus even though the military does not comply with the law schools' anti-discrimination policies. While pundits and scholars will debate the reasoning and ramifications of this decision, we wanted to comment on some of the things that this lawsuit says about life at law schools.
First, it is helpful to understand the backdrop of the FAIR case. For most law students, the most important interview of their career takes place in the fall of their second year. That's when employers come to campus to interview students for summer jobs that often lead to permanent employment. Even if the student does not ultimately go to work for their second-summer employer, the prestige of that second-summer job can dramatically affect whatjob opportunitie are available to a student after law school.
The second year interview is a highly competitive process for both the students and the employers. From the students' perspective, students with poor grades in their first year of law school may have trouble even getting a job. From the employers' perspective, all employers want to recruit the students with the top grades. Since the top students get numerous offers from these on-campus interviews, most top students will not look beyond the on-campus interview process for employment opportunities. In other words, for employers to get the top talent, they need to participate in these critical on-campus interviews.
Recognizing the power they have over employers, almost all law schools refuse to permit employers to interview on-campus unless they pledge to abide by the law schools' non-discrimination policies. In addition to the usual prohibitions against discrimination based on race, gender, ethnicity, and national origin, many law schools require that employers promise not to discriminate based on sexual orientation. It was that last requirement that affected military recruiters.
The military's official policy prohibits homosexuals from serving. In the early 1990s, this policy came to national attention when the Clinton Administration relaxed the rule to a policy that came to be known as "Don't Ask, Don't Tell." Under the "Don't Ask, Don't Tell" policy, while homosexuals were still officially barred from the military, they could continue to serve so long as they did not tell anyone about their sexual orientation.
Law Schools responded to this policy by invoking their anti-discrimination rules and barring military recruiters from participating in the critical on-campus interview process. In 1994, Congress struck back by enacting a law that came to be known as the "Solomon Amendment." In essence, the Solomon Amendment stated that if any part of a university denied military recruiters equal access to interviewing students, then the entire university would lose all of its federal funding. For many larger universities, this federal funding amounted to hundreds of millions of dollars. The Solomon Amendment demonstrated that when Congress acts, it can wield a very big stick.
For most of the 1990s, however, the military did not vigorously enforce the Solomon Amendment, and law schools and the military settled into an uneasy truce where military recruiters received some access to on-campus interviews, but not necessarily equal access. Then came 9/11. After the terrorist attacks on the World Trade Center and the Pentagon, the military informed law schools that if they did not grant equal access to military recruiters, they would lose their federal funding. The universities, which stood to lose enormous sums of federal funding, panicked and ordered their law schools to let the military recruiters in. For their part, the law schools did what lawyers and law students do best: they filed a lawsuit.
To make a long opinion short, after years of litigation, the U.S. Supreme Court held this week that Congress had the power to require the law schools to make an exception to their anti-discrimination rules for military recruiters. The source of this power was the constitutional grant of authority to Congress to raise and support an army and to maintain a navy. In the course of its opinion, the Court also rejected numerous claims that the Solomon Amendment violated the First Amendment rights of the law schools.
As I said at the outset, I won't comment here on whether the Supreme Court's decision was good or bad or indifferent (here is one commentary and here's another). Rather, I want to point out a few things that this decision says about law school. First, the military's insistence on equal access to the on-campus recruiting process underscores just how important those second-year job interviews are. Employers know that this is their best chance to get the top students. This opportunity is so important the U.S. military was willing to get Congress to pass a law and take their case all the way up to the U.S. Supreme Court to have access to law students at this critical moment in their careers.
Second, the fight with the military over whether discrimination against homosexuals is appropriate shows that law schools tend to be on the more liberal side of the political spectrum. Without going into who has the better argument on whether discrimination against homosexuals is appropriate, it is enough to note that, while law schools uniformly condemn such discrimination, the rest of the country remains more divided on the point. The military is not the only organization that refuses to admit homosexuals. The clean-cut Boy Scouts of America also took their case to Supreme Court to vindicate their right to exclude homosexuals. In addition, numerous states have passed laws prohibiting gay marriage (even liberal California). Although not agreeing with the military's policy of excluding homosexuals, even the Democratic Leadership Council disagreed with the law schools' decision to exclude military recruiters from the critical on-campus interview process. In the face of this deep division in American culture, the law schools' uniformity on this question is telling of the general slant of law school culture.
Of course, within any given school, some professors are more liberal and some are more conservative, and in theory a law student's performance in a class should not be affected by the political bias of the professors. Nevertheless, this slant is part of what law school is about and future law students should know that, for good or for ill, it exists.
First, it is helpful to understand the backdrop of the FAIR case. For most law students, the most important interview of their career takes place in the fall of their second year. That's when employers come to campus to interview students for summer jobs that often lead to permanent employment. Even if the student does not ultimately go to work for their second-summer employer, the prestige of that second-summer job can dramatically affect whatjob opportunitie are available to a student after law school.
The second year interview is a highly competitive process for both the students and the employers. From the students' perspective, students with poor grades in their first year of law school may have trouble even getting a job. From the employers' perspective, all employers want to recruit the students with the top grades. Since the top students get numerous offers from these on-campus interviews, most top students will not look beyond the on-campus interview process for employment opportunities. In other words, for employers to get the top talent, they need to participate in these critical on-campus interviews.
Recognizing the power they have over employers, almost all law schools refuse to permit employers to interview on-campus unless they pledge to abide by the law schools' non-discrimination policies. In addition to the usual prohibitions against discrimination based on race, gender, ethnicity, and national origin, many law schools require that employers promise not to discriminate based on sexual orientation. It was that last requirement that affected military recruiters.
The military's official policy prohibits homosexuals from serving. In the early 1990s, this policy came to national attention when the Clinton Administration relaxed the rule to a policy that came to be known as "Don't Ask, Don't Tell." Under the "Don't Ask, Don't Tell" policy, while homosexuals were still officially barred from the military, they could continue to serve so long as they did not tell anyone about their sexual orientation.
Law Schools responded to this policy by invoking their anti-discrimination rules and barring military recruiters from participating in the critical on-campus interview process. In 1994, Congress struck back by enacting a law that came to be known as the "Solomon Amendment." In essence, the Solomon Amendment stated that if any part of a university denied military recruiters equal access to interviewing students, then the entire university would lose all of its federal funding. For many larger universities, this federal funding amounted to hundreds of millions of dollars. The Solomon Amendment demonstrated that when Congress acts, it can wield a very big stick.
For most of the 1990s, however, the military did not vigorously enforce the Solomon Amendment, and law schools and the military settled into an uneasy truce where military recruiters received some access to on-campus interviews, but not necessarily equal access. Then came 9/11. After the terrorist attacks on the World Trade Center and the Pentagon, the military informed law schools that if they did not grant equal access to military recruiters, they would lose their federal funding. The universities, which stood to lose enormous sums of federal funding, panicked and ordered their law schools to let the military recruiters in. For their part, the law schools did what lawyers and law students do best: they filed a lawsuit.
To make a long opinion short, after years of litigation, the U.S. Supreme Court held this week that Congress had the power to require the law schools to make an exception to their anti-discrimination rules for military recruiters. The source of this power was the constitutional grant of authority to Congress to raise and support an army and to maintain a navy. In the course of its opinion, the Court also rejected numerous claims that the Solomon Amendment violated the First Amendment rights of the law schools.
As I said at the outset, I won't comment here on whether the Supreme Court's decision was good or bad or indifferent (here is one commentary and here's another). Rather, I want to point out a few things that this decision says about law school. First, the military's insistence on equal access to the on-campus recruiting process underscores just how important those second-year job interviews are. Employers know that this is their best chance to get the top students. This opportunity is so important the U.S. military was willing to get Congress to pass a law and take their case all the way up to the U.S. Supreme Court to have access to law students at this critical moment in their careers.
Second, the fight with the military over whether discrimination against homosexuals is appropriate shows that law schools tend to be on the more liberal side of the political spectrum. Without going into who has the better argument on whether discrimination against homosexuals is appropriate, it is enough to note that, while law schools uniformly condemn such discrimination, the rest of the country remains more divided on the point. The military is not the only organization that refuses to admit homosexuals. The clean-cut Boy Scouts of America also took their case to Supreme Court to vindicate their right to exclude homosexuals. In addition, numerous states have passed laws prohibiting gay marriage (even liberal California). Although not agreeing with the military's policy of excluding homosexuals, even the Democratic Leadership Council disagreed with the law schools' decision to exclude military recruiters from the critical on-campus interview process. In the face of this deep division in American culture, the law schools' uniformity on this question is telling of the general slant of law school culture.
Of course, within any given school, some professors are more liberal and some are more conservative, and in theory a law student's performance in a class should not be affected by the political bias of the professors. Nevertheless, this slant is part of what law school is about and future law students should know that, for good or for ill, it exists.
