Schuck suggests contradictions in Law School’s JAG stance in book

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When 44 out of about 90 Yale Law professors first propelled themselves into the media spotlight with a lawsuit filed against the Department of Defense over a year ago, some 46 professors — the half that has chosen to remain less public until now — were left in the shadows.

With an article published in The American Lawyer last January, one professor in the latter group, Peter Schuck, demonstrated to the public that some Yale faculty members disagree with the majority stance on the issue of campus military recruitment. In Schuck’s article, which will appear in his forthcoming book, “Meditations of a Militant Moderate: Cool Essays on Hot Topics,” he outlines what he calls several ironies in the Law School’s aggressive position towards the Department of Defense.

Schuck’s colleagues filed their suit against the Defense Department in October 2003, following the Law School’s suspension of its non-discrimination policy for military recruiters in order to qualify the school for federal funding.

“Although I completely agree with the criticism of ‘don’t ask, don’t tell,’ I did not think it was the role of the Law School to do anything more than inform students about the decision and about recruits,” Schuck said in an interview with the News on Tuesday.

Through his arguments, Schuck says that Law School opponents of the Defense Department’s recruitment policy have been acting in a contradictory manner. The Law School itself discriminates against white and Asian applicants through the affirmative action process, he said.

“It seems odd for the schools to insist that they may define merit in a way that disadvantages white, Asian and indeed straight applicants (if schools deem other minorities or gays ‘diversity enhancing’) but that the military may not define merit in a way that disadvantages gays,” Schuck writes in his article.

Another irony Schuck presents is that those same faculty members who filed suit against the Department of Defense do not oppose the federal government’s power to cut off funding from a university that itself discriminated, citing a case involving Bob Jones University in which law schools publicly opposed the government’s subsidization of an institution that discriminated against blacks.

Schuck stresses in his article that he favors barring discrimination against gays and protecting academic autonomy, but that students themselves should be able to decide if they want to enter the military.

“We should not reward or punish the choices of our students but encourage them to make their own moral choices as informed as they can be by us,” Schuck said.

Newt Gingrich and Vince Hailey, who co-authored an article on Monday for FrontPage Magazine, appear to share Schuck’s views, Schuck said.

“Given that Yale law students are supposed to be among the best and brightest, why is it that law students themselves cannot make judgments about whether to interview on campus with the military?” Gingrich and Hailey questioned in their article.

But Student/Faculty Alliance for Military Equality co-chair Fadi Hanna LAW ’06, who called Schuck’s ironies “Alanis Morrisette ironies,” said Law School students have made their own decisions on the JAG issue.

“No other sane employer would have continually sent representatives to campus for two years when faced with zero yield except JAG,” he said. “Students decided they didn’t want to interview. They made their decision, and JAG kept coming. JAG wouldn’t listen to us.”

Schuck said that he has made his views known to Law School faculty members and that, after reflection, several said they agreed with his position.

But professor Jed Rubenfeld, a plaintiff in the faculty suit, said he was not one of those who agreed. Rubenfeld said Schuck seems to misunderstand the Law School’s anti-discrimination policy.

“We don’t block the military from coming into Yale Law School campus … but we are saying they cannot force us through a denial of funding to assist them,” Rubenfeld said.

Schuck said that regardless of the outcomes of the Yale faculty lawsuit or other pending lawsuits on this issue, he will not change his opinion.

“Even if the U.S. Supreme Court affirmed the Third Circuit’s decision, which I think it won’t do, I would still feel that my opinion is a correct one as a matter of policy.” Schuck said. “There is nothing in the lawsuit or the court’s opinion that persuades me that the Yale Law School’s opinion is strong on legal grounds.”

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