Editor's Preface
The following Report was submitted for adoption to the Section on Gay and Lesbian Legal Issues (Section), which on August 31, 1998 adopted it with only minor stylistic modifications. The original draft of the Report was authored by Professor Francisco Valdes, the 1997 Section chair, with the assistance of Professor Sharon Rush, the 1998 Section chair. After its preliminary approval by the Section Executive Committee it was distributed to all Section members for comments and additional feedback. After incorporating all timely-received comments it was distributed to law schools all around the country. It is reproduced here as adopted.
The Report addresses the impact of the "Solomon II" amendment on the recent and ongoing efforts of American law schools, and of the American Association of Law Schools (AALS), to eradicate sexual orientation discrimination in legal education--an effort that represents a continuation of prior, similar efforts to eradicate race and sex discrimination. These efforts are codified in AALS and law school policies that prohibit employers who discriminate on any of these (and other bases) from using on-campus facilities to recruit law students as potential employees. Because the ultimate goal is to secure a bias-free environment for legal education, these antidiscrimination policies, and Solomon II's detrimental impact on them, is important to the nation's law schools, law faculties and law students.
The Solomon II amendment denies certain types of federal student-loan funds to schools that enforce antidiscrimination policies against the United States military, an employer that openly and formally discriminates on the basis of sexual orientation. This legislation's coercive effects therefore threaten directly the bias-free environment that is the ideal in legal education. If legal educators are not careful, this legislation will foster a climate of homophobia in the nation's law schools.
Accordingly, the Report culminates a year-long effort to assess the impact of this legislation on law schools around the country, and is the most comprehensive compilation of current information presently available on the topic. Because this issue is vital both to the institutions and students affected by it, we hope that it will be widely disseminated within each law schools' community, and used by faculties and administrators to help guide law school responses to the legislation. To help assure easy access to this Report, it also has been made available on the Section website; please refer to note 1 of the Report for website information to download additional copies.
If you have any questions about this Report, please contact the 1998 Section Chair, Sharon Rush (U. Florida) or the 1997 Section Chair, Frank Valdes (U. Miami).
August 30, 1998
TO: Section on Gay and Lesbian Legal Issues
FR: Frank Valdes, 1997 Chair ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 28---------------------------------------
AALS Section on Gay and Lesbian Legal Issues
RE: "Solomon II" -- Amelioration Report & Recommendations
-----------------------------------------------------------------------------------------------------------------------
This Amelioration Report (Report) presents the analysis of the author with respect to recent federal legislation affecting certain federal funds for schools that do not permit military recruiters to use on-campus facilities for their recruitment activities.
The Report opens with an executive summary, followed by analysis and recommendations.
To communicate with the Section on this matter, contact the 1998 Section Chair, Professor Sharon Rush (U. of Florida) or the 1997 Section Chair, Professor Francisco Valdes (U. of Miami).
This Report has not been submitted for prior review to the Executive Committee or Membership Review Committee of the American Association of Law Schools (AALS); interested parties should feel free to communicate directly with the AALS by contacting AALS Executive Director Carl Monk (202-296-8851).
cc. Deborah Rhode, President, AALS
Carl Monk, Executive Director, AALS
Members, AALS Executive Committee
Members, AALS Membership Review Committee
Table of Contents
I. Executive Summary -- General Principles
II. Introduction -- A Brief Overview
III. Basic Background -- Solomon II and AALS Policy
IV. Threshold Determinations -- Importance of Federal Funds
V. Access -- Issues and Suggestions
VI. Amelioration -- Access and Suggestions
VII. Conclusion -- A Recap
I.
Executive Summary -- General Principles
This executive summary distills to the following general principles the substance of this Report. However, the issues addressed through this Report are complex. The author therefore urges anyone who wishes to be fully informed to review the Report in its entirety. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 29---------------------------------------
1. Solomon II Affects Only Three Specific Types of Federal Funds, and Law Schools Should First Determine the Actual Amount and Relative Importance of Those Specific Funds.
2. The Solomon II Regulations Call for "Reasonable" Physical Access to the Law School Itself AND ALSO Impose on the Military a Mandatory Duty to Accommodate Schools' "Reasonable Preferences" as to "Times and Places": Reasonable Access Should be Satisfied With a Suitable Interviewing Room Separate from the Career Services Facility.
3. Reasonable Access is not Equal or Unrestricted Access: Equal Access is Gratuitous.
4. Gratuitous Access is Excessive Access, Incompatible Both with AALS and/or Other Applicable NonDiscrimination Policies AND the with Positive Duty to Ameliorate.
5. Ancillary Services are Courtesies Apart from Physical "Access" that Should be Prohibited or Minimized to Avoid Entanglement or Complicity.
6. To Avoid Entanglement/Complicity, Focus on Amelioration, a Positive Duty Encompassing Four Kinds of Action; Involve Students, Faculty, Alumni and Community in Each.
7. "Specific" Amelioration, Tailored Specifically to Provide More Placement Opportunities for Gay Students, Should be Prioritized and Properly Funded and Supported.
8. Circumstance Indicates that Both Access and Amelioration Policies Enacted Now Will Need to be Institutionalized and Monitored for the Long Term; Plan for the Long Term.
9. Though Advance Planning is Prudent, NO Action is Required Until a Law School Receives a Formal "Letter of Inquiry" from the Military, and Then No Hasty Reaction is Necessary: The Simple Administrative Process Initiated by the Letter Ensures that No School will have Funds Cut Off Suddenly.
10. Issues of Access, Treatment and Amelioration Aside, Law Schools Need to Collaborate with Each Other and with the AALS to Devise Legislative and Litigative Strategies to Overturn Solomon II in the Longer Term.
II.
Introduction -- A Brief Overview
During the past year1 the AALS Section on Gay & Lesbian Issues (Section) has been updating you on the effects of the "Solomon II" amendment, which also is sometimes referred to as the "Solomon-Pombo" amendment.2 This amendment cuts off three types of funds under federal education programs that the United States Department of Education has determined constitute "grants or contracts to institutions," and which those institutions then disburse to students in the form of financial aid, mostly loans.3 It bears emphasis, however, that "the Department of Education has determined that most of the Title IV student financial aid assistance programs are not affected by the Solomon-Pombo Amendment."4 This administrative determination is important to note at the outset because it means that, depending on economic circumstance, some schools may not be vitally affected by this legislation.5
This cut-off of three specific types of affected funds applies to law schools that "prohibit or in ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 30--------------------------------------- effect deny" on-campus access to military recruiters, but only after the conclusion of a simple administrative process initiated by the law school's receipt of a formal letter of inquiry from the Department of Defense.6 Thus, law schools need not act at all until they receive the letter of inquiry. Even then, they need not act in haste or panic because the simple administrative process initiated by the letter's receipt ensures that funds will not be suddenly terminated.
In brief, the letter of inquiry is supposed to recite any information that causes the Department of Defense to believe that a school "prohibits or in effect denies" on-campus access to the military; the law school then is allowed 30 days to respond in writing.7 After this initial exchange, the military and the law school can informally or formally exchange additional information to further clarify or modify law school access issues. If the Department of Defense remains unsatisfied,8 it notifies the Department of Education, which then places the school on a list of institutions ineligible to receive the three types of affected funds.9 The execution of the amendment and its implementing regulations thus depends on the interaction of Department of Defense and Department of Education personnel, but the crucial initial determination of ineligibility resides with the Department of Defense.
It appears from prevailing but non-authoritative interpretations10 of the implementing regulations that the statute requires physical access specifically to the law school, or to its portion of a main campus. And because the statute contemplates both formal and functional "denial" or "prohibition" of access to law school facilities, the regulations may be interpreted as requiring schools to modify formally their written nondiscrimination policies to include an express exception for the military; if so, such exception should reflect the narrowness of the AALS policy and the overall sense of narrowness this Report urges throughout. However, the Solomon regulations apparently do not mandate that this access be integrated into a law school's general career services operation: the regulations nowhere refer to "equal" access or treatment, nor demand a wholly undifferentiated inclusion of the military in a law school's general placement activities.
The uncritical granting of "equal" access or treatment by any law school to the military is wrong for three reasons:
1. As elaborated more fully below, the Solomon II regulations refer to "reasonable access" and specify that military recruiters "shall accommodate a covered school's reasonable preferences as to times and places for scheduling on-campus recruiting. The first reason therefore is that "equal" access or treatment is not mentioned in the statute or the regulations. Under these circumstances, the author views more access than is required by law to be gratuitous, and hence incompatible on principle with AALS nondiscrimination policies that remain in place despite, and alongside, Solomon II.11 And among schools that have similar nondiscrimination policies, the grant of gratuitously "equal" access or treatment also would be contrary to that school's and/or university's policies.12 Likewise, some schools are located in cities, counties or states with local or regional nondiscrimination policies that ban sexual orientation bias. In light of these institutional and/or governmental policies, equal access and treatment are wrong because their gratuitous overinclusiveness necessarily violates these policies. In effect, then, the co-existence of Solomon II with AALS, university, school, and state or local nondiscrimination policies puts schools in the position of devising ways of complying with both types of directive at once.
Solomon II's primary effect ought to be to prompt law schools to think carefully about how to satisfy both Solomon II as well as these various institutional and/or governmental antidiscrimination mandates. Law schools therefore need to plan and tailor their adjustments to Solomon II carefully, keeping in mind the continuing need to comply with, and actually adhere to, their continuing substantive commitment to nondiscrimination. To do so, they should meet the requirements of the Solomon law and no more.
2. Apart from this basic reason, a second reason to tailor carefully any new grant of campus access to the military, is that equal or excess access also unnecessarily violates, in symbolic terms, the law school's antidiscrimination integrity. More specifically, ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 31--------------------------------------- excess or equal access conveys the (at least) symbolic message that the law school's commitment to its antidiscrimination policies is less than earnest, and perhaps merely formal. Specifically, excess or equal access belies the assertion oftentimes made in "disclaimer notices" that law schools are being compelled or coerced by federal law to become complicit in the military's policy and practice of discrimination.13 Law schools therefore need to craft responses to Solomon II that do not signal (whether intentionally or otherwise) a willing, excessive or gratuitous complicity in the military's discrimination.
3. Third, and in addition to the above, the AALS response to Solomon II included a "duty to ameliorate" the "detrimental effects" of this newly-provided access.14 This duty to ameliorate is not carefully defined in the AALS guidelines but logic dictates that no greater access than is required by law need be, or should be, granted; as a matter of principle, providing more access than is necessary under the terms of the law would magnify correspondingly the detrimental effects of such access, spiraling the need for amelioration. Because excess or gratuitous access unavoidably undercuts amelioration, the negative impact of excess access on the substantive duty to ameliorate provides a third reason for careful tailoring of any new military access.
The main point of this Report therefore is that reasonable access does not dictate equal access. Though schools should conduct themselves professionally regarding the military on this issue, the language of the law does not obligate schools to do anything else beyond providing reasonable access; within the bounds of professional conduct, reasonable access does not in the author's view imply that schools are obligated to provide other free services or amenities (such as, perhaps, scheduling appointment times, collecting and transmitting resumes, free parking, endless supplies of coffee, snacks or lunches and the like). Beyond providing the "reasonable access" mentioned in the law, schools should avoid entanglement with military on-campus activities and devote their energies and resources to maximizing amelioration.15
With this overview in mind, the remainder of this Report outlines basic background information to provide context, turning next to threshold considerations regarding the amount and significance of the affected funds, and concluding with a discussion of access issues and amelioration issues, respectively.
III.
Basic Background -- Solomon II and AALS Policy
Last year, in response to the Solomon II legislation, the AALS took three steps in tandem: 1) it voted to "excuse" noncompliance with its nondiscrimination policy so long as schools satisfied a positive duty to ameliorate the detrimental effects of such noncompliance; 2) it voted to limit recognition of this excused noncompliance only for so long as Solomon II remains law and only for so long as this noncompliance extends exclusively to the military; 3) it requested all law school deans to report their law school's reactions to Solomon II as part of a fact-gathering process designed to produce information that could be widely disseminated.16 Shortly after these steps were taken, the Section and the AALS additionally decided jointly to solicit experiential reports, and then to issue an amelioration packet of information. During the past year the Section therefore has elicited from you accounts of local experiences so that we could compile and send out this information to all law schools. Since then the Section has received only sporadic reports. In addition, the Section has received copies of the reports provided by deans to the AALS. This Report synthesizes this presently-available information from the author's perspective.17
These experiential reports suggest two waves of scenarios and reactions. The first wave, roughly taking place in 1997, appears to reflect a rather simple tendency to backslide. The second wave, roughly taking place now, reflects a considerably more careful and nuanced adjustment in law school practices to balance Solomon II against extant nondiscrimination policies. The trajectory of law school reaction therefore is good, but not guaranteed. Below we summarize both waves and then address the prospects for a third wave of encounters and reports.
First-Wave Reports: ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 32---------------------------------------
Of course, the Section appreciates every effort of amelioration and resistance. However, early law school reports indicate a first-wave tendency toward excess or gratuitous access accompanied by minimal amelioration: with some instructive exceptions, early law school responses to Solomon II generally may be described as providing equal access accompanied by a simple notice of disclaimer proclaiming the law school's continuing substantive commitment to its nondiscrimination policy and declaring that the new access is "compelled" by federal law. The latter half of the statement is overbroad and inaccurate because equal access and/or equal treatment simply are not "compelled" by the applicable federal regulations. Moreover, granting equal or excess access and treatment necessarily negates the first half of the statement because such access and/or treatment creates at least the appearance of belying the professed continuing commitment to nondiscrimination.
In sum, if your law school in fact is engaging uncritically in excess or equal access accompanied by the half-hearted and minimalist sort of amelioration represented by a simple disclaimer notice, your law school is doing more than Solomon II mandates and less than the AALS guidelines invite (while also violating the school's own antidiscrimination commitment, assuming it has one).
This early tendency may be explained in part as a default reaction in the absence of helpful information, such as the sort that this Report endeavors to provide. We thus hope that this Amelioration Report will help check that tendency. In particular, we urge schools that already have acted to reconsider promptly their actions in light of this Report, and in addition we hope that remaining schools will use this Report to help them devise appropriate and effective reactions. To this end, we urge individual faculty members to bring this Report and its contents to the attention of their deans, career services offices, faculty and students so that all interested parties may become more fully informed.
Second-Wave Reports:
The second, and current, wave of reports indicates that law schools have begun to read the regulations carefully and to tailor their responses in light of their contents. This more careful approach is necessary to avoid the backsliding that occurred in the first wave. This information therefore is useful both to schools that have not yet reacted, as well as to schools who overreacted in the first wave; in particular, we urge first-wave schools to revisit their decisions if they fall short of the lessons to be drawn from the second-wave reports.
The second-wave reports include instances of schools that decided to forego the affected federal funds because those funds were not significant enough for those schools to compromise their nondiscrimination policies and principles. More often, these reports indicate that schools have decided to continue receiving the affected funds but have sought to tailor access to the minimum that is reasonable by providing a suitable interviewing room that is separate from the career services facility. This tempered adjustment, though urged in this Report as the best route to balancing all interests because it is within the apparent ambit of the regulations,18 presently is being negotiated in the context of ongoing discussions between several schools and field-level military representatives. 19
Second-wave reports also indicate that schools have revisited the design of the services they generally provide to all prospective employers, thereby identifying reforms that are applicable to all employers and which, under the regulations, the military has no grounds to oppose when also applied to them. In addition to revising employer access to student directory information,20 schools have discussed or experimented with the following types of general revamping: limiting on-campus visits to one per year (most employers, but not the military, limit their visits to once per year anyway); moving all interviewing activities away from the law school and to the main campus of the university; limiting access only to employers with 500 or less fulltime employees; ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 33--------------------------------------- limiting access only to employers with no local office; limiting access only to employers who in the past three years have hired a certain minimum number of students. Similarly, it has been suggested that schools might charge a nominal fee to all employers for the use of on-campus facilities, which would be unproblematic for most employers but perhaps a problem for the bureaucratized military. Each of these options of course represents a different mix of "pros" and "cons" that every law school must assess for itself in light of its particular situation. These general revamping efforts, however, indicate a rising level of imagination and creativity in law school adjustments to the requirements of Solomon II and the regulations implementing it.
In addition, second-wave reports include instances of creative resistance strategies engaged in directly by students, deans, faculty and administrators. For instance, recent law school accounts report that students and/or deans and/or faculty and/or administrators have picketed the military when it has come on campus. Current reports indicate that these pickets have been peaceful informational "vigils" expressing a sense of social conscience; they concentrate on distributing informational leaflets to students interviewing with the military, as well as to others, that raise awareness of the human consequences effected through the discrimination that the military practices as a matter of policy. Recent reports likewise indicate that students who are gay, sometimes with the aid of gay-friendly students, have signed up for interviewing slots with the military despite the discriminatory policy that bans their employment (at least if they are identified as gay). In this way, gay students and their student allies occupy the military's on-campus time with interviews that, under its policy, will be fruitless for it. These direct-action strategies underscore the substantive irrationality of the policy in everyday operation, and therefore may be viable in a number of institutions, but they are not further discussed below in this Report because these activities do not represent law school or institutional actions.
Third-Wave Prospects:
As the foregoing summaries indicate, the effects of Solomon II and schools' responses to those effects continue to unfold, and probably will continue to do so for the foreseeable future: unless Congress rescinds or modifies this legislation,21 or unless a court invalidates it,22 or unless the AALS and other institutions repeal existing nondiscrimination policies,23 law schools will be confronted with both Solomon II and nondiscrimination policies indefinitely. Because law schools have no reason to suppose that any of these contingencies are imminent, the continued unfolding of these issues in a prospective third wave is probable. Thus, the trajectory of a prospective third wave will depend both on what law schools decide and on how they implement those decisions in everyday circumstances from year to year.
In brief, a prospective third wave either can continue the sort of momentum evinced in the shift from the first to the second wave or it can yield a sense of acquiescence, stagnation and even regression. The difference depends not only on what we decide now, but on how we act from now on. Therefore, law schools should not inadvertently approach these issues as if they represent an isolated or short-term situation. On the contrary, law schools consciously should incorporate into their initial discussions and decisions the need to sustain the actual implementation of their adjustments on both access and amelioration issues.
As the remainder of this Report demonstrates, the issues raised by Solomon II generate various categories of school decisions and re/actions, and each type of decision and re/action will require some sort of monitoring on an ongoing basis to ensure that law school adjustments to Solomon II do not gradually degrade into generalized backsliding. In particular, law schools need to monitor their actions with respect to each of the three types of access/treatment issues and the four types of amelioration issues discussed below to ensure effective, long-term amelioration. Consequently, law schools need to consider and determine as part of their initial decision-making process how to regularize and institutionalize the monitoring of the law school's actions in this matter for the long term.24 To help law schools manage successfully this ongoing issue, the remainder of this Report provides information needed by law school deans, career services offices and faculties to satisfy both the Solomon amendments and the applicable nondiscrimination policies of law schools and/or universities in both the short term as well as the long term. < ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 34--------------------------------------- /P>
Combining the information provided via the various law school accounts received thus far by the Section or the AALS, this Report first addresses a "Threshold Determination" and then turns to "Access Issues and Suggestions" and to "Amelioration Issues and Suggestions." Each part synthesizes the presently-available information to help schools craft adjustments that protect their students' continued receipt of federal funds as well as every student's right to a discrimination-free educational environment. Because these issues appear likely to remain active for the foreseeable future, the discussion that follows encourages law schools to take a long-term view of these issues and of our response to them.
IV.
Threshold Determinations -- Importance of Federal Funds
Before considering access and amelioration, a threshold consideration is whether a particular law school actually receives a significant amount of affected funds. For some schools, the answer may be no, in which case the school can simply forego the federal funds and continue banning the military from its campus. In fact, we have received reports that at least three schools already have taken this route; in these three instances, the military has not proceeded with administrative action, though initiation of such action likely is forthcoming.25 Among the reasons for schools to come to this conclusion are: the availability of alternative funds (especially among well-endowed private institutions), the actual amount of affected federal funds26 in relationship to the school's total financial resources, or a combination of the two. Therefore, the first step for all schools is to ascertain how much federal funding is actually at issue and then to decide whether that amount warrants nondiscrimination retrenchment in light of the school's values and its overall financial status.27
Related to this threshold consideration is the suggestion that a law school could undertake arrangements with a local lending institution as a substitute for federal loans. Because most of the affected funds are loans, this alternative would be geared to providing loans to students on terms similar or equivalent to federal loans offered through the three affected programs. This idea's feasibility of course depends on numerous factors, but in principle it could be explored at local, regional or even national levels: law schools could act singlehandedly, but they also could form local or regional consortia to provide viable substitute loan sources that substantially compensate for the loss of the affected federal funds. At a national level, the AALS could spearhead a like effort, perhaps in conjunction with other national educational associations. Though none of these variations on the basic idea have yet been tested, they illustrate how this threshold consideration can be approached with a high degree of creativity that goes beyond the status quo ante.
The remainder of this Report assumes that schools have gathered the relevant economic data to analyze their position vis a vis this threshold determination. The remainder of this Report further assumes that schools have concluded that they must provide some sort of access in order to retain vital federal funds. The remainder of this Report therefore focuses on access and amelioration, and, most importantly, on their interrelationship both in the short and long term.
V.
Access -- Issues and Suggestions
After making the threshold determination discussed immediately above, the first step in every law school's reaction to the Solomon amendments is to figure out precisely what sorts of access are mandated, and to what extent. This precision is imperative because any access in excess of the statutory requirements is gratuitous.28 The basic principle is to keep access, as well as a law school's overall interface or entanglement with the military, calibrated to the minimum required by the Solomon amendments in order both to retain federal funds and to keep the law school campus as discrimination-free as possible.
I. ACCESS:
Two types of access are contemplated by the federal regulations implementing the Solomon II amendment. These two are physical and informational access. In addition, this Report considers a third set of issues that relate to, but are apart from, "access" as such -- issues that address additional forms of interface and support. In each instance, the Report summarizes the presently-available information under each category of "access" and provides (in boldface) one or more recommendation(s) for proper law school action(s). As noted above,29 this discussion of access takes into consideration the likelihood that law schools will face these issues for the foreseeable future.
1. Physical Access:
To comply with the new regulations, law schools must provide physical access to the law campus (assuming they provide such access to other employers). According to the sample form letter included in the federal regulations, this access must be "reasonable" but the sample letter also contains language that might qualify this point.30 However, the actual regulations also impose a mandatory duty of "reasonable" accommodation upon the military: "military recruiting personnel shall (emphasis supplied) accommodate a covered school's reasonable preferences as to times and places (emphasis supplied) for scheduling on-campus recruiting."31 Thus, so long as schools are being "reasonable" in their "preferences" about "times and places" for "on-campus recruiting," the military is obligated by the regulations to "accommodate" the schools. The regulations thereby negate any inference that the military's unilateral preferences can dictate which precise room or location in the law school campus will be provided for military use. Under these circumstances, law schools that cannot forego federal funds or make alternative loan arrangements should make available a location for the military's use somewhere specifically on the law school campus, and this location must be reasonably suitable for the purpose of interviewing students.
Given the overall tenor of the regulations, and the conflicting mandates of Solomon II and applicable antidiscrimination policies, the author recommends that schools identify a location within the law campus physically distant from the career services center to minimize the harmful effects of the military's physical presence. If the military objects, the law school will have informal and formal opportunities during the administrative process to explain the good faith reasons underlying this action.32 This dialog is important, and should be undertaken earnestly by every school, to persuade the military that its demands beyond this access are unwarranted by the regulations and inconsistent with the military's mandatory duty to accommodate. Additionally, this dialog can help to demonstrate our profession's continuing commitment to existing nondiscrimination policies and their underlying values.
More specifically, this distancing is counseled in good faith by a confluence of five substantive factors, which should be explained to the involved military personnel: 1) the military does not in fact require a site specifically in the career services center to conduct its on-campus interviewing -- it simply needs a suitable or "reasonable" site; 2) on the other hand, all students literally do require physical use of the career services center because most placement business is transacted there; 3) when students generally avail themselves of the career services center they should not be forcibly subjected to the immediate physical presence of military personnel, precisely because those personnel are there on behalf of an employer with a formal policy of discrimination and they therefore are on campus both as the instruments and the symbols of their employer's de jure discrimination; 4) because the military in fact can perform its interviewing functions at another "reasonable" on-campus site, providing access to the career services center represents gratuitous and excessive access, undermining substantively the applicable nondiscrimination policies and conflicting with the positive duty to ameliorate;33 5) because the regulations reserve to the school a right of reasonable preference, and this preference is reasonable in light of the prior four factors. In sum, by providing a suitable but distant site for the military, all interests are balanced: the military can conduct its interviews with students electing to do so, all other students can go about their placement business without being confronted by the practice of discrimination in the core placement site of the law school, and the law school can help to minimize the detrimental effects of the ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 36--------------------------------------- military's on-campus discrimination while also preserving as much as possible its substantive commitment to nondiscrimination policies and principles.
2. Informational Access:
In addition to this physical access, the regulations also require that the military be provided access to student directory information, but only if the law school already "collects" that information, presumably for dissemination to prospective employers.34 However, many law schools do not "collect" such information for transmittal to employers. In this case, it seems that this form of access need not be granted to the military, either.
For those schools that presently do collect and provide to employers such information, Solomon II provides an opportunity to revisit and perhaps revamp that practice.35 Regardless of the original reason(s) for deciding to provide generally this type of service, informational access may or may not be a significant project from the law school's current perspective. Depending on this reassessment, this particular service may be discontinued without significant inconvenience to the school, its students or its other employers.
Therefore, the author recommends that law schools reconsider specifically the sort of informational access presently provided to nondiscriminating employers to determine whether any adjustments to such access are warranted. This reconsideration may be useful because it permits law schools to rethink the benefit that accrues to students or to the school from the provision of such information to prospective employers. It may be that the value of such access is so marginal for the students and/or the school as to be not worthwhile. If discontinued for other employers, such access probably need not be provided to the military either.
3. Additional Access and/or Additional Interface or Support:
Apart from providing a suitable or "reasonable" room on campus and, if applicable, access to directory information, the regulations do not require any further action to accommodate, support or promote the military's recruitment activities. In light of the summary discussion presented above, noting the need for limited complicity in the military's discriminatory practices,36 law schools should not provide any additional form of access, nor should schools take any additional actions to facilitate the military's physical or informational access. Because any further access and interface or support are substantively in tension with applicable nondiscrimination policies and the duty to ameliorate,37 law schools should limit their grants of new access to, and their interface with, the military to the actual requirements of the federal regulations, which specify only physical and informational access as described immediately above.38 To effectuate and communicate the compelled nature of this access, schools should avoid entanglement with, and instead aim for disassociation from, military on-campus activities.
Therefore, the author recommends that law schools specifically prohibit their career services centers from providing free amenities or support services for military on-campus activities. These courtesies might include collecting and transmitting resumes, scheduling appointment times for employers and students, reserving free preferred parking, providing escort/valet services for recruiters, supplying endless coffee service, free snacks or lunches, and the like.39 At most schools, these ancillary services are a simple courtesy that involve voluntary transfers of private property and, as such, cannot be demanded as a matter of right by any particular employer -- including the military. Moreover, these amenities are not necessary to the actual accomplishment of the interviews. Though each school is in a different position vis a vis these ancillary or courtesy services, the basic principle urged is that these "treatment" details in fact are apart from the "physical access" required by the regulations, and these services or interface also should be kept to a minimum.40 Again, disassociation should be the norm. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 37---------------------------------------
In addition, schools may instruct their employees not to provide advice about military employment. On this point, a range of policy options also exist: a school may instruct its employees not to initiate counseling conversations that include references to the military but only to respond to specific questions about the military; a school may go further and instruct its employees that the standard response to such questions always should be that the military discriminates against gays (and women);41 or a school may go even further and instruct its employees to say nothing at all about the military, except to refer students to the military. In sum, the overall interface between the law school and its career services center on the one hand, and the military on the other, should be kept to a minimum in every possible respect to avoid entanglement and to best comply both with Solomon II and with existing nondiscrimination policies.
VI.
Amelioration -- Issues and Suggestions
The access coerced by the Solomon amendments inevitably violates AALS nondiscrimination policies, but this violation is excused if accompanied by proactive steps of amelioration. Under this scheme, amelioration accompanies access precisely because it is what excuses noncompliance with AALS policy. Therefore, law schools should not permit any decoupling of the two, either in time or substance: to counteract detrimental effects, amelioration must be implemented simultaneously with and proportionately to the new access.
II. AMELIORATION
Amelioration, like access, spans several categories. This report addresses four types of possible amelioration: minimum, general, specific and social. To minimize the detrimental effects of new military access, and to maximize this occasion as an opportunity to promote substantively antidiscrimination ideals, every law school should take some action with respect to each of these four types of amelioration. As above, in each category this Report summarizes the presently-available information and then provides (in boldface) one or more recommendation(s) for law school action(s) with respect to each. As noted above,42 this discussion of amelioration takes into consideration the likelihood that law schools will face these issues for the foreseeable future.
1. Minimum Amelioration:
Notices that explain the government's coercion and that disclaim the law school's complicity in military discrimination is the basic and initial ameliorative step. It is the one step that all schools so far reporting have stated that they have taken. Law schools therefore should compose and post a disclaimer/notice explaining this matter to all students. A copy of a sample disclaimer notice is attached for ready adaptation and use.
This notice should be displayed in conspicuous places and in a pervasive manner. To be conspicuous and pervasive, three actions should be undertaken: 1) the notice should be published annually at the beginning of the fall hiring season in the law school newspaper and in similar law school publications; 2) the notice should be posted permanently and prominently within the career services center; and 3) the notice should accompany every instance where the military's presence will occur on the law school campus, including its posting on the door outside the interviewing room and on a wall inside the interviewing room. These postings of course could be supplemented with additional ones. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 38---------------------------------------
Although the law school accounts thus far received typically describe these notices as both conspicuous and pervasive, anecdotal experience suggests that these characteristics might dissipate in practice, and particularly with the passage of time. For instance, recent accounts include reports of students posting unauthorized notices for the military, which invariably are unaccompanied by the disclaimer. Similarly, recent accounts report that representatives of the military unilaterally have entered campuses to distribute information that of course is unaccompanied by the notice. Finally, a few accounts also report disclaimers being torn down, leaving the military's advertisement standing alone. These actions seriously negate the purpose of the disclaimer notice; if not counteracted continually by the law school, these actions likewise vitiate the amelioration that these disclaimers supposedly provide.
Therefore, the author recommends that law schools formally adopt an efficient and effective mechanism to ensure the conspicuous and pervasive nature of these disclaimers on a continuing and long-term basis. Depending on the particularities of a school's situation, and reflecting more general concerns about the long term discussed previously,43 one option to uphold the integrity of the disclaimer notices might be to designate a staffmember of the career services center as an official "Solomon monitor." This person would be charged with the continuing responsibility of ensuring that military notices are not posted without the disclaimer, and this monitor should be authorized to take prompt appropriate action to rectify any lapses regarding the disclaimer. Through this monitor or some other means, law schools similarly should arrange to conduct continuing inspections of all law school bulletin boards and facilities, and the administration and faculty should receive periodic reports based on these inspections, to keep everyone abreast of the law school's actual record on this minimal type of amelioration.44
2. General Amelioration:
The next ameliorative step is law school sponsorship of on-campus extracurricular programs devoted to education on sexual orientation and gender discrimination.45 The law school and its career services center therefore should sponsor, and provide financial support for, at least one such educational program every year. To best capture their ameliorative potential, these annual on-campus programs should be timed to coincide with the beginning of the fall hiring season. Moreover, these programs should commence at the same time as the new access is provided, and should not be delayed until some indefinite time or year in the future.
To design the most well-received programs, law schools should involve students proactively in this type of amelioration. In particular, law schools should ensure the involvement of relevant student groups in the conception, planning and execution of these programs: though all student groups ought to be allowed the opportunity to participate constructively in general amelioration, law schools proactively should elicit the involvement of the gay and lesbian student group (and the women's group) in particular. Because the military's current discriminatory policies and/or practices seems to most affect these two groups,46 they and their memberships should be invited to lead the planning of these annual programs.
Therefore, the author recommends that law schools commence this general type of amelioration with an invitation to these (and other) student groups to join the career services staff in a brainstorming session about programs or interventions that the most-affected students think may be most helpful to them. In addition, law schools should consider inviting to this brainstorming session local attorneys who are gay, or who have an interest in nondiscrimination issues, to involve the local legal community in the design and execution of these educational programs. Among these community representatives ought to be law school alumni, if possible. Similarly, interested faculty should be invited to participate in this brainstorming session. From this initial brainstorming session, the career services center, the student groups, the community representatives and the interested faculty can assemble a joint agenda of effective programs designed to educate the on-campus law school community of the "detrimental effects" that current sexual orientation and gender discrimination have on them, on their colleagues, on the legal profession, and on society. In like vein, students, community and alumni representatives, and interested faculty should be included in the planning and execution of all ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 39--------------------------------------- general amelioration programs from year to year.
3. Specific Amelioration:
The most important ameliorative step, in the author's view, is the identification and provision of employment opportunities for sexual minority students specifically. This step is crucial because amelioration, to be truly meaningful, should be tailored to the specific harm as much as circumstances permit. Though the harms caused by on-campus military discrimination can range widely, the most direct and likely specific harm is the deprivation of on-campus interviewing opportunities for a specific subset of students: while sexual majority students may receive additional interviewing and placement opportunities from the military's new access, sexual minority students will be completely and formally shut out of these new opportunities.47 Specific amelioration accordingly refers to the development and facilitation of new, and imaginative, gay-specific placement opportunities.
As with general amelioration, these initiatives, to be as meaningful as possible, should include the involvement of the most affected students, as well as community leaders, alumni representatives and interested faculty. Their involvement should range from conception and design to participation and execution. Finally, this involvement should be continued from year to year with consistency. The first step, as with general amelioration, thus might be to organize a brainstorming session, or to include "specific amelioration" issues in the brainstorming session discussed above under "general amelioration."
Therefore, the author recommends that the career services center of each law school work with students, attorneys, alumni and faculty to identify appropriate alternative services specifically tailored to the needs of its lesbian and gay students that presently are not provided, and that such services then be promptly funded and consistently provided. And because this sort of "specific amelioration" is the most targeted type of amelioration, the author further recommends that law schools instruct their career services centers to prioritize this part of the ameliorative process. These gay-specific, ongoing opportunities include sending students to the Lavender Law Conference, which takes place annually in different cities and which includes networking and interviewing possibilities. Likewise, sending students to other local, regional or national gatherings of gay and lesbian attorneys also would be appropriate. Similar types of specific amelioration include: working with local sexual minority bar associations to conduct local job fairs; working with local or state bars, or sections of these organizations, to identify potential employers; highlighting gay-friendly employers among existing interviewers, etc. To make these initiatives meaningful, these programs should include staff support for logistical arrangements, as well as law school funding to enable students to actually take advantage of these opportunities.
4. Social Amelioration:
In addition to the three types of amelioration noted above, law schools also will encounter opportunities to engage in additional ameliorative actions. These opportunities most likely will arise in the context of local or regional events. For instance, law schools may encounter opportunities to support local domestic partner and/or nondiscrimination initiatives. These and other examples of local issues most likely will implicate the same equality concerns as other ameliorative opportunities noted above because they help to foster (or impede) a local environment free of discrimination.
The author therefore recommends that law schools be alert at all times to opportunities for additional ameliorative steps, and that they proactively engage such opportunities as often as possible. In many localities the law school may be in a unique or strategic position to offer support of different types to local or state nondiscrimination initiatives. Such support can range from allowing community groups to use law school facilities to faculty resolutions in favor of such or similar initiatives. Whenever feasible, support of all types should be offered to help promote a discrimination-free profession and community. These opportunities can be managed on a case-by-case basis but, as a basic principle, law school policy should embrace this final type of amelioration to ensure maximum fulfillment of the duty to ameliorate. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 40---------------------------------------
VII.
Conclusion -- A Recap
Solomon II affects only three types of federal education funds -- mostly loans -- that may or may not be significant to particular schools depending on their overall economic resources. However, this legislation does not require law schools to act at all until they receive a formal letter of inquiry from the military. After receiving that letter, a simple administrative process begins that guards against any sudden termination of affected funds. Thus, hasty or panicky action is never necessary, although schools are well-advised to commence advance planning as soon as practicable.
Assuming that federal funds are indispensable to a law school's financial viability and that no loan substitutes exist, the AALS response to Solomon II presents to law schools a two-sided decision. The first side is how to tailor the new access carefully to avoid excess or gratuitous access, which logically is necessitated by the second side of the AALS' decision. These "access" issues are apart from additional support or interface, but ancillary services or contacts similarly should be kept to a minimum to avoid law school entanglement with military bias. The second side is how to fulfill positively the duty to ameliorate -- a duty that incidentally also provides every law school the opportunity to demonstrate and reaffirm beyond the bare minimum its continuing substantive commitment to nondiscrimination. Law schools are presented with four different types of amelioration, and should make some proactive and continuing effort regarding each. Thus, it bears emphasis that every law school's professional responsibility is to apply in good faith both aspects of new AALS policy -- carefully tailored access accompanied by proactive and effective amelioration. To do so, law schools should provide reasonable access, as required by the federal regulations, and focus their resources on attaining maximum amelioration while minimizing any additional or unnecessary interface with the military.
As this Report makes clear, this issue is not likely to disappear next year. Law schools therefore must respond to this issue with a recognition that it likely will require careful attention indefinitely. All decisions made now should include a careful consideration of their long-term effects and sustainability. In particular, schools need to devise and then institutionalize the means and mechanisms by which access will in fact be regulated and by which amelioration will in fact be maximized from year to year.
Finally, and aside from the issues of access, treatment/interface, and amelioration discussed above, law schools need to collaborate with each other and with the AALS to develop alternative strategies to overturn Solomon II. These strategies range from the legislative to the litigative, but the bottom-line point is that the current situation is likely to remain in place until and unless Solomon II is modified or rescinded. Therefore, law schools should urge the AALS to act promptly and resolutely in opposing this statute, increasing its efforts continually until some modification of Solomon II is achieved either through legislative or judicial action.
Endnotes
1 The Section Newsletter last year published three informational reports on this topic. See Section Newsletters, Spring 1997, Fall 1997 and Special Edition, December 5, 1997. Copies of these newsletters may be obtained from the Section Newsletter Editor, Professor Art Leonard at New York Law School (email: aleonard@nyls.edu; phone: 212-431-2156; fax: 212-219-3752). The contents of these (and other) Section newsletters also are available on the Section website, which is located at: "www.cwsl.edu/aalsqueer". For website information, please contact Professor Scott Ehrlich at California Western School of Law (email: SBE@cwsl.edu; phone: 619-525-1410; fax: 619-696-9999).
Additional information on this and related topics may be available from time to time on the Sectio ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 41--------------------------------------- n's listserv, "AALSQueerSection". This listserv is "closed" -- available for subscription only to section members in order to provide a relatively safe forum for discussion of Section issues. If you are a Section member, to subscribe send an email message to "majordomo@cwsl.edu" and include the following message in the body of the email (not in the "re" part but in the "message" part of the email): "subscribeAALSQueerSection". Upon receiving your subscription request, Scott will confirm your membership status with Art and then activate your subscription. If you are not presently a Section member and wish to subscribe, contact Art Leonard directly to first become a member.
2 "Solomon II" -- sometimes also called "Solomon-Pombo" -- refers to the most recent amendment in this ongoing saga. This amendment targets for cut-off three types of Department of Education funds whenever the Department of Defense finds a particular school in non-compliance with its terms. See infra note 3. Prior to this amendment, the "Solomon I" amendment enacted similar restrictions with respect to Department of Defense funds. However, the Solomon I amendment failed to have much effect because most law schools do not receive significant federal funds from the Department of Defense. Solomon I's failure prompted Solomon II. For more detailed information on this history, see sources cited in supra note 1.
3 These three programs are: the Federal Perkins Loan Program; the Federal Supplemental Educational Opportunity Grant (FSEOG) Program; the Federal Work-Study (FWS) Program. However, the Department of Education also has determined that most federal education program remain unaffected by Solomon II. Programs NOT affected include: the Federal Pell Grant Program; the William D. Ford Federal Direct Loan (Direct Loan) Program; the Federal Family Educational Loan (FFEL) Program; the State Student Incentive Grant (SSIG) Program, the Robert C. Byrd Honors Scholarship (Byrd) Program,; and the National Early Intervention Scholarship and Partnership (NEISP) Program. These latter programs are unaffected by Solomon II because they are not considered "grants or contracts to an institution." See Memorandum Gen-98-3, United States Department of Defense, Office of Postsecondary Education, January 1998.
4 Id. at 2.
5 See infra notes 25-27 and accompanying text (addressing this question as a threshold determination in every law school's response to this legislation).
6 A sample letter of inquiry is provided in Appendix B of the federal regulations. 32 CFR 216.6 (1997) This sample letter is important to the interpretation of the regulations because it is the only portion of the regulations that specify the level or type of access that the regulations contemplate. In its concluding paragraph, this sample letter states that "Successful recruiting requires that Department of Defense recruiters have reasonable access to students on the campuses and universities." However, this letter also is mixed because in its second paragraph it specifically requests that a law school's response to the inquiry "should highlight any difference between access for military recruiters and access for recruiting by other potential employers." This generalized request does not signify that difference is disallowed, and under general rules of construction it should not prevail over the more specific description of the required access as "reasonable access."
Apart from the sample letter in Appendix B, the body of the regulations contain further indicants important to this particular question of interpretation. The regulations themselves state that "military recruiting personnel shall (emphasis supplied) accommodate a covered school's reasonable preferences as to times and places for scheduling on-campus recruiting." 32 CFR 216.4(e)(1) (1997) This mandatory duty of accommodation in effect tracks the "reasonable access" framework of the sample letter. This mandatory provision, coupled with the specific "access" language in the sample letter, thus indicates that "reasonableness" and not "equality" is the applicable standard, notwithstanding the generalized request for "highlighting" difference that also is contained in the sample letter. See also infra note 19 and notes 30-33 and accompanying text.
Nonetheless, as noted below, the military at times has taken the position in their discussions with various law schools that the statute mandates "equal" access. The foundation of that position is not known. If it adheres to that position formally and finally, the time for a lawsuit challenge the statute "as applied" may have arrived. In this regard, the ACLU Lesbian and Gay Rights Projects announced by memo dated May 20, 1998 that the Project is "convinced at this point that the best strategy is to first challenge the way the Department of Defense is administering the amendment" and that the Project is "ready to represent schools" in a declaratory action to establish that the statute requires "reasonable" but not "equal" access. The Project executive director, Matt Coles, is interested in hearing from any person or institution with an interest in such a lawsuit. Contact the Project at 212-549-2627.
7 For more detailed information, see prior Section reports in sources provided in supra note 1.
8 As noted above, the regulations appear to vest in the Secretary of Defense (or the Secretary's designee) the authority to determine initially whether the regulations have been satisfied as applied to any particular school, and this administrative determination then is subject to judicial review. For more discussion of this point and its possible ramifications during the administrative process, see infra note 19.
9 For a more complete account, see 32 CFR 216 (1997). A copy of these regulations were previously provided as an attachment to the Spring 1997 Section newsletter.
10 To our knowledge, no court has interpreted these regulations. The interpretation provided here therefore is one read, and it is not intended, nor should it be taken, to constitute legal advice. Every law school should use its faculty's expertise or counsel's office to confirm or modify the interpretation offered here.
However, as noted in the text of the Report immediately above, the regulations vest in the Secretary of Defense an initial authority to determine whether a "school has a policy or practice that either prohibits or in effect prevents" the military from interviewing on campus; in practice, the regulations grant to the Secretary of Defense (or the Secretary's designee) an initial authority to interpret the regulations as applied to any particular school. This initial administrative interpretation of course is subject to judicial review, but the power of initial interpretation may affect the military's bargaining position and power with a particular school over the details of access.
Due to the foregoing, this Report attempts a "fair" rather than "aggressive" interpretation of the regulations: this Report eschews aggressive interpretation to avoid unproductive confrontation with the military over the meaning of the regulations. The idea behind this Report's measured interpretation of the regulations is to identify positions that are reasonable and sustainable, and that therefore require the military to take an aggressive position to support any demand by it for greater concessions from schools. At bottom, the aim of this Report is to delineate positions that are substantively in accord with the demands of Solomon II but that simultaneously ensure that law schools' adjustments to Solomon II do not occasion generalized backsliding from antidiscrimination gains or principles.
11 In 1990 the AALS House of Representatives voted unanimously to amend ByLaw 6-4 to add "sexual orientation" to the list of protected categories under the AALS' nondiscrimination provisions. Subsequently, the AALS Executive Committee enacted Regulation 6.19, which mandates that law schools receive from employers written assurance of nondiscrimination based upon ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 43--------------------------------------- any of the protected categories, including but not limited to, sexual orientation. Because the military refuses to provide such written assurances, and in fact cannot due to its policy of de jure discrimination, it has until now been barred from access to most law school campuses under ByLaw 6-4 and Regulation 6.19. Thus, Solomon II is designed to force either a change in AALS nondiscrimination policy or noncompliance with the AALS policies currently embodied in this ByLaw and Regulation. The AALS has not repealed in whole or in part its nondiscrimination policies, but it has decided to "excuse" noncompliance when noncompliance is accompanied with "amelioration." The AALS response to this legislation is discussed further below. See infra notes 16-17 and accompanying text.
12 During the past decade, and especially since the AALS ByLaw was adopted, many law schools and/or their universities have enacted nondiscrimination policies that include "sexual orientation" or its equivalent as a protected category. See generally Gene P. Shultz, The Inclusion of Sexual Orientation in Non-Discrimination Policies: A Survey of American Law Schools, 2 L. & Sexuality 131, 136-37 (1992). The Section is processing data collected more recently through a survey on current law school antidiscrimination policies regarding sexual orientation. For more information about the status of this survey, please contact Professor Marc Fajer (U. Miami). Additionally, law schools may be affected by state laws or local ordinances that similarly prohibit sexual orientation discrimination. See generally Developments in the Law--Sexual Orientation, 102 Harv. L. Rev. 1508 (1989) (broadly surveying social and legal conditions affecting sexual orientation discrimination). Thus, the Solomon legislation requires law schools to tread with care among the conflicting imperatives of nondiscrimination policies enacted by themselves, their universities or their local and state governments.
13 As discussed further below, these disclaimer notices represent the minimal type of amelioration that law schools have undertaken thus far. See infra notes 41-43 and accompanying text.
14 For a complete discussion see supra note 1 and Section newsletter issues cited therein.
15 For more discussion of ancillary or courtesy services, see infra notes 36-40 and accompanying text.
16 These actions are reported in Memorandum 97-46 of the AALS, which was sent to all deans of member and fee-paid schools on August 13, 1997. See Carl C. Monk, Memorandum 97-46, Military Recruiting at Law School Career Services Offices: Update on Actions Regarding Executive Committee Regulation 6.19, the Obligation to Provide Equal Opportunity to Obtain Employment without Discrimination, August 13, 1997. A copy of this memorandum was previously distributed as an attachment to the Spring 1997 Section newsletter.
17 It bears emphasis that this Report is from the author, and therefore provides only the author's views. The AALS plans to issue an amelioration report or informational packet during the summer of 1998, and may issue reports expressing varying views in the future. In addition, others may interpret the applicable regulations and other relevant data differently than we do here. See, e.g. infra note 19 (emphasizing that, subject to judicial review, the Secretary of Defense possesses initial administrative authority to interpret the implementing regulations).
18 See supra notes 11-15 and infra notes 30-33 and accompanying text.
19 In some instances, the military has expressed a preference for equal access, specifically "a degree of access to students that is equal in quality and scope to that afforded to other employers." Recent reports indicate that this preference in time may become the military's formal position in the statute's application. However, to our knowledge, the resolution of this issue has not yet been concluded at any school. While the military and various schools continue to negotiate this issue, the ACLU Lesbian and Gay Rights Project has announced that it would represent one or more law school(s) willing to be named as plaintiff(s) in a declaratory action to challenge the statute as applied. For more information, see supra note 6. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 44---------------------------------------
Generally, the regulations do not explicitly or implicitly mandate equal access; in fact, they indicate the reverse because the sample letter from the military to law schools that is included in the regulations specifically recites a request for "reasonable access." See supra note 6. In addition, the actual regulations also impose a mandatory duty of reasonable accommodation on the military; the regulations specify that "military recruiting personnel shall (emphasis supplied) accommodate a covered school's reasonable preferences as to time and places for scheduling on-campus recruiting." 32 CFR 216.4(e)(1) These two provisions thus specify "reasonableness" as the access standard and even mandate that the military "shall" be accommodating with respect to such reasonableness as to both time and place. On the other hand, the sample letter also requests that schools "highlight" any difference between access for the military and for nondiscriminating employers. See id. This request for "highlighting" does not per se signify that difference is disallowed, especially because nowhere in the regulations is that potential implication corroborated. On balance, therefore, the sample letter specifies "reasonable access" as the contemplated standard and the regulations direct the military to be accommodating with respect to such reasonableness, but the sample letter also potentially qualifies this specification with a more generalized reference to highlighting difference of treatment. Established rules of construction that prioritize the specific over the general thus would suggest that "reasonable" access is all that the statute requires.
Nonetheless, the regulations vest in the Secretary of Defense (or the Secretary's designee) a right of preliminary administrative interpretation, which means that initially the military will be able to reject suitable but separate facilities. This position, if actually taken by the military, would seem in breach of its mandatory duty to accommodate. This position therefore may be vulnerable to challenge in light of the regulations, but only litigation could dislodge this interpretation. See supra note 6. Therefore, litigation may be the ultimate recourse to temper an overly aggressive final military interpretation of the regulations; if so, the direction of such litigation will be of interest to other schools and, presumably, to the AALS. The complexities of that scenario are beyond the scope of this Report.
However, schools should not accede to a hasty compromise on principle because it appears that the military is approaching this issue with some caution. Although law school reports indicate that experience varies wildly in the field, this variance seems to stem from the fact that the initial application of Solomon II depends on the temperament of field offices, and apparently field staffs differ in temperament: some field officers are more aggressive than others.
Moreover, it appears that once a dispute arrives at the Pentagon, it may receive considered and tempered analysis: the information we have received thus far indicates that the Pentagon staffers (and political appointees) ultimately responsible for enforcing Solomon II are not eager to engage in protracted or detailed disputation with law schools or universities so long as the military is in fact receiving reasonable or suitable access. Finally, during this administrative process, law schools are not being threatened with a sudden cut-off of funds. Therefore, the administrative process provides both formal and informal opportunities, and should be used as an vehicle, to communicate and emphasize the good faith reasons for a "suitable but separate" policy to all military staffers, and especially to the Pentagon staffers (and political appointees) that will make the actual administrative decision of in/eligibility under the particular facts of a school's position.
Though this posture might change in the future, law schools at a minimum should use the administrative process to tailor access in accordance with applicable nondiscrimination policies unless directly ordered to do more by the Pentagon at the end of the administrative process (in which case, as noted above, litigation ought to be explored, probably in conjunction with the ACLU and ideally with the assistance of the AALS and other interested parties). ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 45---------------------------------------
20 See infra notes 34-35 and accompanying text (discussing why Solomon II may prompt some schools to reconsider their continued provision of this particular service).
21 At the 1998 AALS Annual Meeting in San Francisco, the AALS House of Representatives adopted, by an overwhelming majority, a resolution directing the AALS to lobby Congress for repeal of this legislation, or at least for repeal of the provisions that target the student financial aid funds specified above. See supra note 3. Since then, and in response to that resolution, AALS Executive Director Carl Monk has written letters to Representatives Solomon and Pombo, as well as to the White House, to the Department of Education, and to the Department of Defense urging repeal of the Solomon II amendment. In these letters, the AALS expressed the view that the amendment is unfair and that its underlying basis, the military's "Don't Ask, Don't Tell" anti-gay policy, is unconstitutional. The AALS formally has taken the latter position in pending litigation. See infra note 22. As of the date of this Report, the AALS had not received any acknowledgment or response to these letters.
22 The AALS Executive Committee previously had decided to file an amicus appellate brief in the case of Able v. United Sates, in which Judge Eugene Nickerson of the Eastern District of New York held that the military's "Don't Ask, Don't Tell" policy violates the equal protection clause of the Fourteenth Amendment. See AALS Memorandum 97-46, supra note 16, at 3. The case has been argued and, as of the date of this Report, remained under advisement. If upheld on appeal, this ruling would help to resolve the issues triggered by Solomon II because it would remove the grounds for the military's de jure discrimination on the basis of sexual orientation.
23 It appears unlikely that the AALS will move toward such a repeal, given the contrary resolution adopted overwhelmingly at the most recent annual meeting by the AALS House of Representatives. See supra note 21.
24 For one such suggestion relating to one particular point of the Solomon II scenario, see infra notes 42-43 and accompanying text.
25 The three schools presently known to have made this decision are New York University, Rutgers-Newark and Harvard.
26 See supra note 3 on the three types of affected funds.
27 It bears emphasis that this calculation depends on a law school's clear sense of the affected funds among the totality of federal funds that it receives. For a breakdown of affected and unaffected funds, see supra note 3.
28 Gratuitous access, as explained above, should be avoided because it is incompatible with substantive commitments embodied in law school, university, local or state nondiscrimination policies. See supra notes 11-15 and accompanying text
29 See supra notes 21-25 and accompanying text.
30 See supra notes 6 and 19 (elaborating the details of this issue).
31 32 CFR 216.4(e)(1) (1997). Although this language is fairly straightforward, the military has attempted to use its power over initial administrative interpretation of the regulations to extract "equal" access by resisting a school's "reasonable preferences" as to "times and places." While the military in some instances apparently seeks "equal" access, this matter has not yet been concluded. If the military were to prevail on this particular point in the administrative process through an oppressive o ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 46--------------------------------------- r overzealous use of its initial power to interpret, this abuse would be subject to judicial rectification through litigation. See supra note 19 (explaining further this point).
32 See supra notes 6-9 and accompanying text. And if no "reasonable accommodation" is forthcoming, law schools should consider seriously whether to accept the ACLU offer of litigation assistance. See supra notes 6 and 19.
33 See supra notes 11-15 and accompanying text.
34 Though the regulations are ambiguous on this point, it appears that "informational access" is the only instance where the statute might require "equal" access. See generally 32 CFR 216.4 (4) and (5) (1997).
35 For more discussion of general revamping, see supra note 20 and accompanying text.
36 See supra notes 11-15 and accompanying text
37 Id
38 Of course, law schools should avoid rudeness to, or unprofessional treatment of, the military's representatives. Professional civility is counseled not only by norms of common courtesy but by the fact that the field officers who interact initially with the law school may have considerable influence over the course of events. See supra note 19.
39 At some schools, the mechanism for scheduling interviews has been to place a sign-up notebook at the reference desk of the law library, which permits students to sign up without the active involvement of school staff. This arrangement also permits the military's activities to be less visible because student sign-ups at the reference desk do not call attention to that activity.
40 Again, this minimum level of interface should be accomplished with professional and courteous contacts between the law school and the military. See supra note 38.
41 Though the Solomon controversies have focused on sexual orientation, the military practices some forms of de jure discrimination on the basis of gender as well. See infra note 45. The issue of military discrimination therefore is of broader concern.
42 See supra notes 21-25 and accompanying text.
43 The idea of a monitor also responds to the need to plan for the long term. As noted above, schools need both to devise and to institutionalize the decisions made now because the standoff between Solomon II and applicable nondiscrimination policies is likely to remain in place for the foreseeable future. See supra notes 21-24 and accompanying text.
44 This "monitor" also could be designated the point person for the regularized and institutionalized maintenance of access and amelioration policies generally. See supra notes 21-24 and accompanying text.
45 The military presently discriminates on the basis of sexual orientation by prohibiting the employment or enlistment of openly ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 47--------------------------------------- gay persons. See generally, Kurt D. Hermansen, Comment, Analyzing the Military's Justifications for its Exclusionary Policy: Fifty Years Without a Rational Basis, 26 Loy. L.A. L. Rev. 151 (1992). However, the military also discriminates on the basis of sex and gender by formally foreclosing all women from certain types service -- types of service that generally are correlated to promotion and advancement within the military. See generally Christopher Horrigan, Comment, The Combat Exclusion Rule and Equal Protection, 32 Santa Clara L. Rev. 229 (1992) (criticizing the rule excluding women from career-advancing combat positions as justified only by stereotypic conceptions of sex/gender roles). In both instances, current military discrimination is de jure because it is incorporated into formal policy.
46 See supra note 45.
47 It bears mention that some accounts indicate that military recruiters, prior to their ban from law school campuses, sometimes hired only a few students. This information of course is school-specific, but a low hiring record on the military's part in prior years undermines the argument that some schools might hear from some of their students in favor of wholesale access. In brief, these arguments plead that expanded placement opportunities are at a premium in tight hiring times. But a low prior hiring record might indicate that the expansion of placement opportunities represented by on-campus access for the military in fact may be illusory or exaggerated.