Recruitment discrimination weakens military

Author: GEOFFREY B. SHIELDS

A year ago, the United States Court of Appeals for the Third Circuit decided that the federal government could not penalize colleges and graduate schools for insisting that all on-campus recruiters, including the military, not discriminate based on sexual orientation. On Dec. 6, the U.S. Supreme Court began hearing FAIR v. Rumsfeld, and will decide whether to uphold that lower court decision.

At Vermont Law School we take a particular interest in this case because for a decade we have been one of the three law schools in the country willing to forego the opportunity to receive a substantial amount of money in government grants due to our stance that all employers who recruit on our campus must not discriminate based on race, religion, sex, age, color, disability or sexual orientation.

As dean of Vermont Law School, I hope that FAIR wins and believe that the better legal arguments lie with upholding the lower court decision based upon the First Amendment right of expressive association.

But, win or lose, I am troubled by the policy of the United States government that has led to this case. The merits of nondiscrimination seem compelling. Based on the benefits to the United States, I call for the government to change its position on recruiting gays and lesbians for the military. Until a few decades ago, the military discriminated based not only on sexual orientation, but also on race and sex. The arguments on those issues, heard in the middle of the twentieth century, were similar to the arguments we hear about admitting gays and lesbians to the military today. Yet, upon admitting African-Americans and women into the ranks of the military, it was quickly found that their presence was not disruptive. The recruits brought tremendous talents and capabilities to the military, greatly enhancing the military's effectiveness.

The civilian sector has found that insisting on equal employment opportunities for gays and lesbians has been good business practice, and many of the companies serving as support for the military in Afghanistan and Iraq do not discriminate against gay and lesbian employees. The experience of the militaries of Israel, Great Britain, Canada, Australia, Germany and dozens of other countries whose armies recruit openly gay soldiers is instructive in that the talents of their gay and lesbian soldiers have strengthened their militaries and have not impaired the ability to fight under difficult circumstances. Indeed, our own military's experience supports the case for recruiting gay and lesbian soldiers. In times of conflict - Vietnam, the first Gulf War, the present conflicts in Iraq and Afghanistan - because the military needs them, military discharges of gays and lesbians have dropped dramatically. Yet, in these times of closest quarters and greatest stress for troops, there has been no upsurge in "gay bashing" or other problems within the ranks.

It is time to make available to the ranks of our military the talents of thousands of gay and lesbian men and women who want to serve. Let us revisit the "Don't Ask/Don't Tell" policy and do not just what is fair, but what will strengthen our military capability. Let's stop discriminating. Let's strengthen our military.