From U-Wire
Arizona Daily Wildcat
April 14, 1998

Stanford Law may have to change military policy

STANFORD, Calif. (U-WIRE) - Stanford Law School may have to change its long-standing position against allowing the military to recruit its students, despite the Armed Forces' stance on gay and lesbian personnel.

The law school's nondiscrimination in employment policy, in effect since 1985, states that its facilities and services are open only to employers who do not discriminate on the basis of a number of categories, including sexual orientation.

The military is potentially in violation of this standard because of its "don't ask don't tell" policy, which prevents it from asking personnel about sexual orientation but does allow them to discharge service people who are gay or lesbian.

Although the law school has been able to avoid deciding whether the military is in violation of its nondiscrimination policy, recent communications from the Navy may force a decision.

The military has not recruited at the law school in recent years, but it expressed interest last fall in interviewing law students for the Judge Advocate General's Corps, the unit portrayed by Tom Cruise and Demi Moore in "A Few Good Men."

This unit is composed only of lawyers and is responsible for all trial and legal work for the military.

Because of this, the law school has not allowed the military to recruit at its buildings. Recent legislation places student financial aid at risk if the school does not accommodate the military. Last fall, a concession was made by the law school that gave the military permission to interview law students at the Career Planning and Placement Center, which was seen as technically not at the law school.

Whether this compromise will satisfy the military remains to be seen.

The CPPC has always allowed military recruitment because its policy states its facilities are open only to employers that do not "unlawfully discriminate."

"The military has a waiver from the federal government to discriminate lawfully," said CPPC Director Bob Thirsk. "Our policy states anyone that unlawfully discriminates can't use our services or facilities."

Outlaw, the gay and lesbian law student association, has been working to keep the military entirely off the campus.

"Outlaw's position is that the military should not recruit at all on campus," said Toni Broaddus, Outlaw member. "If the military was blatantly discriminating against women or blacks, the law school wouldn't stand for that. We think they should do the same for gays and lesbians because our civil rights are no less important."

In the past, the law school would not have had to grant the military's request to recruit. In 1990, however, Congress passed the Solomon Amendment, named after Rep. Gerald Solomon, R-N.Y., which placed any school's Department ofDefense funding in jeopardy if the military was not allowed to recruit on campus.

Because law schools did not receive defense funding, they were still able to deny the military access to students. To directly target law schools, a second Solomon Amendment was passed in 1996 that prohibits the Department of Education and other government agencies from giving grants to colleges that ban military recruiters.

This includes any federal financial aid given in lump sum to a school for later distribution to students.

Between $750,000 and $1 million each year in law school funding could be in jeopardy, according to Law School Dean Paul Brest.

According to Eric Pelletier, parliamentary counsel to Congress' Rules Committee, which is chaired by Solomon, the amendments were enacted because skilled personnel in the military are essential to providing national defense.

"The military should still be allowed access to students and let the students make the decision rather than having the school's administration make the decision because they may disagree with the policy of our nation's military," Pelletier said.

Outlaw's Broaddus interprets the Solomon Amendment differently.

"The Solomon Amendment is basically an attempt to blackmail law schools into complicity with the U.S. government's policy of discriminating against and harassing gay and lesbian citizens," she said.

The Solomon Amendment placed many law schools in the middle of needing to protect financial aid while still complying with their nondiscrimination policies.

Frank Valdes, of the gay and lesbian section of the American Association of Law Schools, explained that although the Armed Forces do not comply with the association's nondiscrimination policy, the association was forced to allow universities' noncompliance because of the financial burden the law created.

"We decided to excuse noncompliance with our anti-discrimination policy as long as a school is being forced to do so, and this exception applies only to the military. And in addition, the school takes ameliorative action," Valdes said.

These actions, which include promoting an active lesbian and gay student organization and an openly gay faculty and staff, are designed to help soften the damage of the military's discrimination.

The financial cost has been more than most schools can absorb. Although not every school has been approached by the military, all that have, except New York University, have allowed access, including the law schools at Yale University, Duke University and UC-Berkeley.

NYU decided it had sufficient endowments to give financial aid to students without the government's help.

Pelletier explained that the amendment purposely tied noncompliance with funding, rather than mandating compliance, so schools have a choice if they want to continue to receive federal aid.

Broaddus found the tying of discrimination to financial incentives as an attempt to reach beyond the military's domain.

"It's ridiculous for the government to hold hostage the opportunity for students based on discrimination," Broaddus said. "Basically, it's a bribe."

So far, the law school has been able to avoid making any financial or policy decisions. In the fall, the military agreed to interview law students at the CPPC, which Brest deemed as not technically at the Law School, but the interviews never took place because of scheduling conflicts.

"Last fall, they were perfectly content to recruit at the CPPC, not at the law school," Brest said. "Our policy only concerns using law school facilities."

Brest emphasized that because of the technicality of the law school versus the CPPC, he has not had to make any decisions yet.

"At the moment, there has never been a determination about whether the military policy violates the Law School's regulation," Brest said.

How long this technicality will appease the military is unknown. The military is in communication with 44 law schools, including Stanford, that are suspected of not complying with the Solomon Amendment.

"Currently, the Department of the Navy is seeking clarification of Stanford Law School's policy regarding recruiter access," said a spokesman for the Department of Navy, Office of the Judge Advocate General.

Bill Carr, from the Office of the Secretary of Defense, said, "If the military is treated differently from other employers and specifically asked to not go onto the Law School while other employers are allowed on, that would probably rise to a violation in the statute."

Another option for Stanford would be to comply with the military while filing suit against the federal government over the Solomon Amendment.

"The First Amendment forbids the government from regulating speech in ways that favor some viewpoints at the expense of others," explained Kelli Evans, of the American Civil Liberties Union. "If you don't like military recruiters because you believe they discriminate and you decide to protest those acts by not allowing them on campus, the Solomon Amendment takes away all of your federal funding.We would claim that abridges the school's right to academic freedom and of free expression."

Brest said that at this juncture, the Law School has yet to decide how it will proceed because it has not yet determined whether "don't ask, don't tell" violates school policy.

Evans said there were a number of universities contemplating a lawsuit but no onehas actually filed suit.

"It would be a challenging lawsuit to bring. These are very hard issues, and litigation against the government is a big undertaking. Law schools and undergraduate institutions are afraid. They are unwilling to jeopardize millions of dollars in federal funding, so they're unfortunately willing to capitulate."

Valdes, of the American Association of Law Schools, agreed that "the tendency has been to backslide. It has been the habit of school to change their policies unthoughtfully."

Outlaw members said they realize that military recruiting may be inevitable, and they are fighting to lessen the damage when it occurs. At Stanford, this could include hanging large disclaimer posters that the Law School does not support discriminatory practices and hosting informational panels for the law student body about military policy, including members of the military discharged for being gay.

How well the heterosexual law students will welcome the military is still unknown. Numerous interviews at the Law School found no one with an interest in a military career.

If the military is at Stanford in the fall, there are a number of gay, lesbian and gay-friendly students prepared to fill the recruiting slots, and then announce at the beginning of the interview that they are gay, effectively negating the interview and wasting the military's day.

"If the school is coerced, it doesn't mean they must allow them on friendly terms," Broaddus said. "We want to make it an uncomfortable environment so they won't come back."