July 08, 2008
New Research on DADT
In the wake of the 9th Circuit Witt decision (subjecting DADT to intermediate scrutiny), the Palm Center has recently published numerous pieces of research about DADT.
In one article, the Palm Center points out that "52 Retired Generals and Admirals Call for Repeal." In another report, the Center exposes the fact that "Senior Military Leaders" support an end of the ban.
It remains to be seen how the lower court will handle the Witt decision on remand.
May 23, 2008
"Don't Ask Don't Tell" Subject to Intermediate Scrutiny
On May 21, 2008 the Court of Appeals for the Ninth Circuit, in Witt v. Dep't of the Air Force, 2008 U.S. App. LEXIS 10794 (9th Cir. May 21, 2008), overruled the lower court's decision to dismiss the case for failure to state a claim under the Due Process clause of the Constitution. Here, a woman who had performed extremely well in the military, winning honors through the years, was dismissed from duty after news that she was in a committed lesbian relationship reached her military commanders. She challenged the Don't Ask Don't Tell "DADT" policy as a violation of her constitutional rights to Due Process and Equal Protection. Id. at *1-6.
In a very important decision, the Ninth Circuit recognized that the Lawrence v. Texas 2005 Supreme Court decision created a recognized right of privacy for sexual conduct which subjects Don't Ask Don't Tell to intermediate scrutiny. Id. at *13. The court stated that only one circuit (the Eleventh Circuit in Lofton) has held that Lawrence did not create a new fundamental right, but the Ninth Circuit declined to follow that logic. Id. at *19-20.
Thus, the military, according to the Ninth Circuit, must demonstrate that it has an important government interest, that DADT will significantly further that governmental interest and that there is no alternative, lesser intrusive means of furthering that governmental interest. Id. at *29.
The court recognizes that the government has an important interest (the management of the military), but it is unclear whether DADT significantly furthers that interest and/or whether the interest could be furthered through less intrusive means. Id. at *30.
The court declined to apply heightened scrutiny to the Equal Protection claim, however, and affirmed that part of the lower court's decision. Id. at *37. Thus, the court remanded to the district court for further consideration of the due process clause claim in light of the heightened standard of review. Id. at *38.
Thoughts: This is a very significant decision because the Ninth Circuit recognizes here, for the first time, that the Lawrence sodomy decision creates a heightened standard of review for governmental interference with sexual privacy. It will be interesting to see what the lower court holds in response on remand and how other circuit courts (beside the Eleventh Circuit) handle similar questions.
February 28, 2008
Georgetown Law Conference--Sexual Orientation & Military Preparedness
Georgetown Univ. Law Center will hold a conference entitled "Sexual Orientation and Military Preparedness: An International Perspective" on March 12, 2008 from 6-8 p.m. (Gerwitz Student Center 12th Floor).
"Stuart O'Brien, Chief Petty Officer and Directorate of Navy Personnel Research, Australia
Michelle Douglas, Director, International Relations Group, Department of Justice, Canada
Patrick Lyster-Todd, Lieutenant Commander, Royal Navy of Great Britain (Retired)
Avner Even-Zohar, former Captain, Israeli Defense Forces"
See Georgetown Press Release for further details.
Note that the webcast will be available here if you cannot attend the event.
October 12, 2007
Post-Fair II: Second Circuit Denies Yale's Academic Freedom Claim
On Sept. 17, 2007, the Second Circuit issued a post-Fair II opinion dealing with stayed first amendment claims relating to academic freedom and freedom of association. Yale professors claimed that it violates their first amendment rights to academic freedom and association to force the school (with the threat of federal funding withdrawal) to allow military recruitment on campus despite the school's non-discrimination policy. Burt v. Gates, 2007 WL 2694439 (2d Cir. Sept. 17, 2007).
Obviously, the second issue, freedom of (dis)association, was clearly answered in the Fair II case. However, the Supreme Court did not directly address the "academic freedom" claim. Id. at *5. The Second Circuit notes that the Supreme Court was obviously aware of the claim, though, and would have rejected this argument. Id. at *5, 7 (noting that the Fair II court plainly rejected the argument that the Solomon Amendment requires the petitioners to associate with the military--thus, they may also freely "disassociate themselves from the recruiters by words and deeds.").
Thus, the Second Circuit addressed the claim of Yale professors (including the Dean of Yale Law School) that forcing the school to permit military recruitment on campus hinders academic freedom by stifling their "commitment to equal justice among their students, ensuring a diverse student body, and helping students frind appropriate careeers[.]" Id. at *5. The Second Circuit rejected this claim because "[t]he relationship between barring military recruiters and the free flow of ideas is . . . attenuated." Id. at *6. The court notes that nothing in "The Solomon Amendment [restricts] the content of teaching, the membership of teachers in organizations, the selection of students, or evaluation and retention of students." Id.
First, yes, the Supreme Court would probably reject this claim. Id. at *2 (noting that the Fair II decision was unanimous). Especially due to the plain language of the Fair II case. Forum for Academic & Inst. Rights v. Rumsfeld, 544 U.S. 1017, 1307 (2005) (noting that the Solomon Amendment regulates "conduct, not speech" and "affects what law schools must do-afford equal access to military recruiters-not what they may or may not say."). However, I still think it is worthwhile to think these claims through, as the right to academic freedom is central to the purpose of any educational institution.
Although the Solomon Amendment does not restrict the content of teaching (professors may express their opinions without restraint), it certainly restricts the ability of the professors to promote an environment conducive to learning, which, after all, is the most important function of an institution of higher learning. One of the keys to effective teaching on any college campus is the inclusion of diverse viewpoints. See Grutter v. Bollinger, 539 U.S. 306, 328-29 (2003). By permitting the military to recruit on campus with a restrictive "don't ask, don't tell" policy, the school (along with its professors) contradicts its own message. Academics cannot express their commitment to diversity fully with the presence of discriminatory military recruiters. Thus, when individual professors discuss their commitment to an open and respectful classroom environment, students (particularly LGBT students) may feel that this message is insincere or untruthful due to the contradictory message conveyed by the presence of miliary recruiters on campus. The presence of military recruiters on campus hinders the message of those professors and academics who seek to create an atmosphere of inclusion inside their classrooms and on campus in general.
Attenuated? A bit. But, must a school-wide policy literally bind the mouths of the professors in order for them to present a valid academic freedom claim? Or, can one demonstrate an academic freedom claim when the government undermines one of the key messages the professors intend to convey in the classroom? Also, what is the point in seeking to recruit a diverse student body if one cannot then promote an environment conducive to the expression of multiple viewpoints? In other words, unless the diverse student body feels comfortable, the students will not participate in classroom discussions and debates--defeating the "compelling interest" of diversity on campus.