Tag: military recruitment

On the Right to Discriminate

In his post this morning, “Kagan on Military Recruitment,” Cato adjunct scholar Mark Moller touches on Cato’s 2005 amicus brief in Rumsfeld v. FAIR, which he co-authored when he was with us as editor-and-chief of the Cato Supreme Court Review – a duty he performed splendidly before moving off to the legal academy. In mentioning the brief, however, Mark says that he recalls that the position it took was controversial within Cato, that it might still be, and that Cato’s legal shop might take a different view were the case presented today.

I don’t recall that the position we took was controversial within Cato, but then it was five years ago, memories fade, and much has happened in the meantime, including the filing of a brief just three months ago that nicely complements the earlier position we took. In Rumsfeld v. Fair we argued that the government could not condition a private university’s eligibility for federal grants, as the Solomon Amendment did, on the university’s giving up one of its rights, namely, its right to freedom of association. The law school plaintiffs, citing the military’s “Don’t ask, don’t tell” policy, sought to exclude military recruiters from campus. Pursuant to their nondiscrimination policies, that is, the law schools sought to discriminate against those they thought to be wrongly discriminating. In our brief we took no position on the policy Congress had set for the military (that question was not before the Court), nor on the rights of public universities in this matter – nor did we address the question whether Congress, under its raise-and-support-armies power, could directly order schools to admit recruiters, as the Court ultimately held.

Well we now have the public school version of that issue before us, and the Court, in Christian Legal Society v. Martinez. And our brief in this case, written by Cato adjunct scholar Richard Epstein, argues that a public law school – Hastings, in this case – cannot condition the receipt of benefits it extends to all other student groups on CLS’s giving up its right to freedom of association. CLS, a private student group, excludes nonbelievers from its membership, which is its right. As a public institution, we argue, Hastings must treat all equally.

Thus, the principle in the two cases is the same. Private parties, pursuant to their right to freedom of association, may discriminate, whether we agree with their grounds for doing so or not. Public institutions, which belong to all of us, may not discriminate except on grounds narrowly tailored to their functions. Unfortunately, in numerous respects, that’s not our current law. For more, see here.

Kagan on Military Recruitment

Elena Kagan has been getting a lot of flak  from the right for her position on military recruitment at Harvard. While the military’s don’t ask don’t tell policy is unjust, Harvard’s position on recruitment was also misplaced—and, were the question ever presented to my faculty, I’d vote against barring the military from recruiting at my law school for the same reasons as Ilya Somin.

But, although Harvard made the wrong call on recruitment (albeit one that, in fairness, is not attributable just to Kagan, but, reportedly, to an overwhelming majority of the Harvard law faculty), Kagan’s opposition to the Solomon Amendment, which conditioned federal funding on JAG recruiters’ access to campus, has much to recommend it from a libertarian standpoint, for the reasons put forward in Cato’s amicus brief  in Rumsfeld v. FAIR, the case challenging the Solomon Amendment (which you can download here). (Disclosure: I co-wrote the brief when I was at Cato. As I recall, this was a controversial position within Cato, and I’d guess that remains true today. Cato’s current legal shop might well take a different view were the question presented to it now.)

True, the Supreme Court rejected our position 8-0. But it’s not the first time, and will be not be the last, that the Court musters eight votes for what some libertarians think is a questionable outcome.

And for the record, my view on Kagan—while she’s, as Kagan would say, “not my people,” she’s a top-notch scholar, a great Dean (who was very fair to faculty conservatives and libertarians), by all accounts an outstanding teacher, and likely to fall somewhere on the liberal continuum to the left of Breyer and to the right of Stevens.  Could be worse!