Discrimination And Disingenuousness At American Law Schools

On first reading I thought “Imposing Inequality On Law Schools,” an OpEd article in today’s Washington Post, was a spoof. By one Kent Greenfield, identified as “a law professor at Boston College and president of the Forum for Academic and Institutional Rights,” the article presents FAIR’s argument in its lawsuit against the Dept. of Department of Defense and the Solomon Amendment, which allows the U.S. government to cut off funds for universities that refuse to allow military recruiters on campus. (Law schools had refused such recruiters for years because of the military’s discrimination against gays and lesbians, but they relented under threat of losing funds, and now FAIR and the Society of American Law Teachers has sued.) But then I thought no, the Washington Post wouldn’t publish a spoof on such an important issue. At least not on purpose.

Why did I think the article a spoof? For starters, take a look at this excerpt:

For decades virtually every American law school has maintained anti-discrimination policies that include traits having no relation to merit: race, national origin, gender, religion, disability, veteran status and sexual orientation. This commitment to nondiscrimination is a fundamental element of law schools’ educational policies, because we cannot teach our students about justice when some students feel they are being judged on illegitimate grounds. We cannot teach our students to be advocates for equality when some are deemed second-class citizens on the basis of who they are, what they look like or who their partner is. Nondiscrimination is a core belief, a central aspect of our constitutionally protected academic freedom.

Gag me with a spoon. In another lawsuit with which you are all familiar, every law school and its sister signed on to an argument that “diversity,” not “nondiscrimination,” was the fundamental, bedrock principle of legal education, and “diversity” requires the fine tuning of admission, hiring, and other benefits on the basis of race, national origin, et. al. The “diversity” policy also guarantees that those students who in fact are committed to the principle of non-discrimination will “feel they [and others] are being judged on illegitimate grounds.”

You can see why I thought Mr. Greenfield must be joking. If this is not a joke, I thought, this guy, and maybe even the Post’s editors, must be completely oblivious to how hollow and disingenuous his fealty to the principle of non-discrimination will sound to those of us who think that principle should be applied to everyone, not just gays and lesbians.

Want more?

This commitment to nondiscrimination applies not only in our classrooms and admissions offices but in our career services departments as well. Law schools thus refuse to aid employers that discriminate in recruiting our students. If prospective employers are looking for the best and the brightest, we are delighted to help. But if an employer is looking only for white students or Catholic students or straight students, we will not assist him in recruiting.

What if an employer wanted a black student or a Hispanic student? Would the law schools supporting FAIR’s suit refuse to allow it to recruit on campus? Or what if an employer wrote something like the following to a law school placement office:

Our organization is committed to diversity, and we have determined that we do not have enough gay and lesbian attorneys. Although we will consider all applicants, we would appreciate it if you would identify which of your students who have signed up for our interviews are gay, lesbian, or transgendered and which, if any are members of traditionally underrepresented racial, ethnic, or religious groups.

It’s getting harder and harder to tell spoofs from reality.

UPDATE – I have just sent the following soon-to-be-unpublished letter to the editor of the Washington Post:

To the Editor:

In justifying his organization’s lawsuit aimed at preserving the granting of federal funds to universities whose law schools bar military recruiters from their campuses because of policies that discriminate against gays and lesbians, Kent Greenfield writes that “for decades virtually every American law school has maintained anti-discrimination policies that include traits having no relation to merit: race, national origin, gender, religion, disability, veteran status and sexual orientation. This commitment to nondiscrimination is a fundamental element of law schools’ educational policies, because we cannot teach our students about justice when some students feel they are being judged on illegitimate grounds.” (“Imposing Inequality On Law Schools,” Nov. 10)

Could those be the same law schools who have just argued, in supporting the University of Michigan’s use of racial preferences in admissions, that diversity, not non-discrimination, is the bedrock principle of legal education today? I don’t see how, for diversity requires that some students be included and others excluded who otherwise wouldn’t be but for their race or ethnicity. The diversity policy also guarantees that all those students who actually believe in the principle of non-discrimination will “feel they [and others] are being judged on illegitimate grounds.”

Prof. Greenfield also writes that the law schools’ “commitment to nondiscrimination applies not only in our classrooms and admissions offices but in our career services departments as well. Law schools thus refuse to aid employers that discriminate in recruiting our students.”

Really? Do law schools bar recruiters from organizations that have indicated a preference for hiring minorities?

Prof. Greenfield and his colleagues seem to use the word “discrimination” rather like Humpty Dumpty, who once famously said that “when I use a word … it means just what I choose it to mean, neither more nor less.” And we all know what happened to Humpty Dumpty.