COLUMN: Even principles have their price

Late last month, the U.S. military sent recruiters to Vermont Law School. It was the first time in over a decade the Pentagon had tried to lure one of the school's granola-loving, Teva-wearing law students into the services, but try they did. It was a set-up, really, more an attempt to enforce a government policy than to actually sign up students to be "Judge Advocate Generals." You see, ever since the military instituted its infamous "don't ask, don't tell" policy in 1993 -- which requires ejecting open homosexuals from the armed forces -- recruiters have been given less-than-red carpet treatment at many law schools. In response to this protest, Congress in 1997 passed the Solomon Amendment, which denies some federal financial aid to students at schools barring recruiters. For all but a handful of law schools, this penalty has been too steep to bear. In late 1997, Penn's Law School capitulated and allowed recruiters back on campus amid loud protests from students and faculty. The Law School has since reached a compromise with the Pentagon, allowing the recruiters access to its students so long as they recruit from the University's Career Services office rather than the Law School's. This arrangement kept the recruitment visits in line with Penn Law's non-discrimination policy. Vermont Law, a small independent school, had no such option. So when recruiters demanded access last month, three student groups sued the federal government, alleging that the Solomon Amendment is unconstitutional. The dean of Vermont Law, Kinvin Wroth, is contemplating adding his school's name to the list of plaintiffs. He told me that the Solomon Amendment is "an inappropriate use of the spending power to in effect force us to abandon this principled position" of non-discrimination. David Rudovsky, a senior fellow at Penn's Law School, agrees. "I think there is a strong argument to be made that the [Solomon Amendment] does not give the authority to cut off funding as long as some mechanism exists for recruiters to reach students." "Certainly in some situations it is legitimate for the government to withhold funds to uphold a policy," Rudovsky conceded. But withholding financial aid holds the students hostage to an administrative policy. "If the federal government decided by statute to say, 'You know, we want to encourage more men than women to enlist in the military,' [and then] gives a disproportionate amount of scholarship money to men," Rudovsky said, "no court would uphold it." Besides, he argued, "just because a policy is on the books doesn't mean that every attempt to enforce that policy is legitimate." I disagree. Like it or not -- and I don't -- "don't ask, don't tell" is national policy. The federal government has many objectives in awarding financial aid. One of them certainly is to enhance the military's ranks of Judge Advocate Generals. And in a larger sense, insulting the military insults the government the military fights to protect. Will Harris, an expert on constitutional law and a Political Science professor at Penn, agrees. Harris opposes "don't ask, don't tell," and he decries what he calls "the promiscuous attachment of all kinds of obligations that are not germane" to federal funding. Whether it be education policy or highway safety, Harris thinks the federal government too often usurps the power of state governments. But he thinks the ability of the military to recruit at a law school is "actually quite relevant" to whether the government should subsidize that school. "Look, the recruitment process opens up all sorts of legitimate employment prospects for people with legal educations," he said. If the federal government subsidizes those legal educations, it certainly has a right to be one of those prospective employers. If a law school decides to make a political statement by barring recruiters, Harris said, it can do so -- and should be praised for doing so. But to expect taxpayers to continue to subsidize its tuition revenue implies that national policy should cater to its own institutional policy, however noble it may be. Besides, civil disobedience requires sacrifice. Fifteen months ago, a law student -- and former Daily Pennsylvanian executive editor -- outlined in these pages a principled civil disobedience plan. She suggested that every law student donate one week of her (considerable) summer earnings to the school to replace any lost financial aid. Her solution is no longer relevant at Penn, for its moral dilemma was conveniently solved with a dubious "compromise." But if the students at Vermont Law lose their suit, let's hope they decide to put their money where their mouth is.

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