“I announce this necessary change to our policy with deep
sadness,” wrote Dean Michael A. Fitts of the University of
Pennsylvania law school.
In a memorandum to “The Penn Law Community,” the dean unhappily
proclaimed that the military would henceforth be permitted to
recruit directly through the law school’s career planning and
placement office. Faced with the prospect of losing an estimated
$500 million in annual federal funds to the university as a whole,
the law school had decided to treat military interviewers “like all
other recruiters.”
In a similar memo, Mr. Fitts’s counterpart at Columbia called
the federal government’s leverage of funds to gain access for
military recruiters “abhorrent.” Mr. Fitts settled on the
less-incendiary adjective “troubling,” but vowed to take
“ameliorative action.”
The dean’s memo was dated March 20, 2003. The men and women in
America’s armed forces were just heading into harm’s way in
Iraq.
PERHAPS IT SHOULD COME AS NO surprise that roughly half of Penn law
school’s faculty have sued the Department of Defense over its
enforcement of federal legislation linking government grants to
military access. “Ameliorative action,” indeed.
In their role as plaintiffs, Penn’s 21 litigating professors are
far from alone — they enjoy ample and distinguished company among
the ranks of legal academia.
Then again, maybe these lawsuits should surprise us. After all,
the very same military that so many law professors deem unworthy of
access to the nation’s preeminent law schools was their staunchest
and most influential ally in last summer’s legal battles over
affirmative action. Legal scholars, it appears, have an
unconventional way of saying thank you.
In her majority opinion in Grutter v. Bollinger,
upholding the limited use of race in the admissions process at the
University of Michigan law school, Justice Sandra Day O’Connor made
it abundantly clear that the support for affirmative action from
“high-ranking retired officers and civilian leaders of the United
States military” was crucial to the Court’s decision. The Legal
Times reported that the military amicus brief supporting the
University of Michigan “had a direct impact” on the outcome of the
case.
The influential amicus brief, signed by 29 former leaders of the
armed forces, was not just another stack of paper sitting amid the
reams of predictable briefs submitted by legal scholars. It was,
arguably, decisive. When it comes to affirmative action, the
military is its most persuasive advocate.
In their brief, the amici professed to be “deeply interested in
this case, because its outcome could affect the diversity of our
nation’s officer corps and, in turn, the military’s ability to
fulfill its missions.” Such an assertion, expressed by a group of
luminaries in the realm of national defense, informed Justice
O’Connor’s pragmatic view that the benefits of affirmative action
“are not theoretical but real.”
If there is ever such a thing as a “compelling governmental
interest” that the courts must recognize, national security fits
the bill. To call diversity compelling, the military need not rely
on esoteric arguments about its benefits on the mind and soul. All
the amici had to do was draw upon history and point to a
frightening specter: “the dangerous and destructive environment of
a racially diverse enlisted corps commanded by an overwhelmingly
white officer corps.”
Scholars can wax poetic (and legalistic) all they want about the
benefits of affirmative action, but there is no image more haunting
and persuasive than that of minority enlisted troops looking to
their officer corps and seeing no one of their own race. When
someone like retired General H. Norman Schwarzkopf signs his name
to a document calling diversity “critical to national security,”
you tend to listen — whether or not you happen to be a Supreme
Court justice.
IN THE WAKE OF THE SUPREME COURT’S 5-4 decision in Grutter v.
Bollinger, admissions offices at institutions of higher
education expressed a sense of relief and celebration. Harvard
Magazine congratulated Crimson alumni on the amicus brief
their university had filed, and on the references that Justice
O’Connor made in her opinion to the 1978 case lionizing Harvard’s
admissions program as a model for narrowly tailored racial
preferences.
What has been lost to some scholars, unfortunately, is not only
the impact that the military brief had on the outcome of the law
school affirmative action case, but also the implicit message that
the brief contained for our nation’s educators: Making life
difficult for military recruiters is incompatible with a commitment
to affirmative action, not to mention national defense.
The military amici wrote that “the military must both
maintain selectivity in admissions and train and educate a
racially diverse officer corps to command racially diverse troops.”
Clearly, if we are to have the highly qualified and diverse officer
corps that the military wants and needs, it has to come from
somewhere. Due to financial and space constraints, the service
academies and officer training schools can only commission so many
new officers each year.
That leaves us with one remaining option for commissioning the
majority of new second lieutenants and ensigns to lead our troops:
the ROTC, which “continues to be a particularly significant vehicle
for increasing [minority] representation in the officer ranks.”
As the military amici astutely point out, there’s only one
catch: “To obtain an ROTC scholarship, a candidate must be admitted
to the hosting college or university. The pool of minority
candidates at any given ROTC member institution is thus limited to
the number of minority students admitted.”
Thus, our nation’s best colleges and universities must play a
part, even an integral one, in the military’s quest for a diverse
and top-notch officer pool. If not, they are shirking their duty —
both to the national defense and to the very goal of diversity that
they profess to cherish.
If our elite educational institutions are as proud as they say
of their record of diversity, and if the military feels that
diversity in its ranks is crucial to national security, then surely
our great universities have an extraordinary opportunity to do a
patriotic service and at the same time score a big victory for
racial diversity. To make this happen, all they have to do is let
their student bodies be as accessible as possible to military
recruiters and opportunities.
Sadly, when our top undergraduate schools keep ROTC off campus,
and when our top law schools keep military recruiters at a
distance, they are acting in a manner antithetical to both the
interest of the country and the notion of diversity. Indeed, they
are merely reinforcing what Colin Powell called the “antidemocratic
disgrace” of Vietnam. As the Secretary of State wrote in his
autobiography My American Journey, “I can never forgive a
leadership that said in effect: These young men — poorer, less
educated, less privileged — are expendable but the rest are too
good to risk.”
NOW THAT AMERICAN FORCES HAVE captured Saddam Hussein, legal
scholars will no doubt have plenty of opinions about how he should
be tried. Probably some of the 21 Penn law professors now suing to
keep military recruiters out of their career office will show up as
talking heads on TV, telling the military what they should do. Of
course, when the government came to them looking for potential JAG
officers, it received the cold shoulder… and a lawsuit.
Winston Churchill warned his country in 1933 that England’s
“worst difficulties … come from a peculiar type of brainy
people always found in our country, who, if they add something to
its culture, take much from its strength.” While Churchill was
trying to stop the rise of Hitler, Britain’s leading intellectuals
were busy casting the country into a “mood of unwarrantable self
abasement.”
Today, as the United States wages war against a global terrorist
threat that seeks our destruction and has struck civilians on our
own soil, the nation’s elite law schools seek to deny the military
the benefits of their resources and student body. The courts should
not aid them in this endeavor.
