OutRight

by Dale Carpenter

MILITARY MANEUVERS

As a recent Harvard case shows, government support has a downside

He who pays the piper calls the tune. Harvard Law School recently got a reminder of this aphorism when the federal government threatened to cut off all funding for the school unless it ended its ban on military recruiting, a ban the school initiated to protest the military's discrimination against gays. For those who advocate the use of government power on behalf of gays, the episode should be a lesson in how that power may be turned against us.

For more than two decades, Harvard Law School has refused to give military recruiters access to its career placement department. Such departments facilitate contacts between students and potential employers by setting up interviews conducted on school property. Most of those employers are private law firms, but federal and state government agencies also recruit for their legal departments.

Like many law schools, Harvard bars discrimination on the basis of sexual orientation and requires recruiters to pledge they will not discriminate against gays in their employment practices. For most private-sector law firms, especially the largest and most prestigious firms, this requirement is no problem since they already have policies barring such discrimination.

But the U.S. military cannot make this nondiscrimination pledge. By federal law, passed by Congress and signed by President Clinton nine years ago, the military must expel known homosexuals. "Don't Ask, Don't Tell," as the policy is called, has resulted in an increase in discharges for homosexuality in almost every year since its inception.

Private schools around the country, like Harvard, have reacted to this discrimination by banning military recruitment on their campuses. This action has had little if any discernible effect on actual military recruitment of university students since recruitment continues off-campus and military recruiters are often invited to visit by student groups. The policies serve mostly as a symbolic statement of non-cooperation with state-sponsored antigay discrimination.

Nevertheless, Congress responded with a 1996 federal law known as the Solomon Amendment after its sponsor, Rep. Gerald Solomon (R-NY). The Solomon Amendment makes federal funding for university research contingent on schools' allowing military recruitment on campus. In other words, "Let military recruiters on campus or we cut off your government money."

Although Harvard permits military recruiters at undergraduate job fairs and allows them to visit the law school at the invitation of a student group, the U.S. Air Force recently informed the law school that the recruiting ban violates the Solomon Amendment. The Air Force threatened to recommend ending government funding to all of Harvard, not just the law school. That would have meant a loss of $328 million a year, 16 percent of Harvard's operating budget, with serious repercussions for students' education, faculty work, and important research aided by money from the federal government.

Predictably, the law school's gay student group blamed the Bush administration for its "very heavy-handed approach to enforcing policy." However, the new get-tough line on military recruitment was first proposed by President Clinton's Defense Department in 2000. And, of course, Clinton signed the Solomon Amendment into law-another reward for all our hard work on his behalf.

Faced with this significant loss of federal money, the law school lifted its ban. In a letter to students and faculty, the dean wrote: "I have personally struggled with this issue. At the same time most of us reluctantly accept the reality that this university cannot afford the loss of federal funds." If Harvard, by far the richest private university in the country, can be brought to its knees by threats from the federal government, then no such institution will be able to resist.

The point here is not to defend university bans on military recruitment. That is a hard call, involving as it does the application of an important principle (nondiscrimination) to a matter of national need (military recruitment) in a time of crisis (the war on terrorism and a potential war against Iraq). The bans are probably justifiable given the trivial impact they have on actual recruitment. But a good, and not necessarily homophobic, argument can be made against such bans. Further, private educational institutions can call attention to the military's discrimination without completely banning recruiting.

The point, instead, is to highlight the power the state wields when it grows to the point that it insinuates itself into almost every aspect of our lives. Almost no one-even the most stingy fiscal conservative-seriously opposes government funding for medical research, scientific studies, student loans, and similar good causes.

Yet the government that gives so generously with one hand can smack us with the other. As the Harvard experience demonstrates, even the richest and most powerful of us can become dependent on government sponsorship. The larger the role of the state in our lives, the more often we'll find ourselves in a conflict between what we want to do and what the government wants us to do. And we'll find the call to heel as irresistible as Harvard did.

Some gay civil rights advocates seem sanguine about using state power to make life better for gays. Hate crimes laws, employment discrimination protections, funding for community and AIDS groups, and other measures call on government to help us in some way.

At least some of these measures are surely worthwhile. But we must recognize they come at the cost of an expanded state, a state whose ends we will not always control. That should counsel considerable caution whenever someone proposes we surrender a little freedom for a little help from our government friend.

Writing from the conservative end of the political spectrum, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a law professor. He can be reached at OutRight@aol.com.