December 15, 1998
TO: Members and Friends, Section on Gay and Lesbian Legal Issues
All Law School Deans and Faculties of the United States
FR: Executive Committee, AALS Section on Gay and Lesbian Legal Issues
RE: On-Campus Military Recruiting – Balancing AALS Rules, Other Nondiscrimination Policies and the Solomon II Amendment
On September 15, 1998 the Section on Gay and Lesbian Legal Issues (Section) of the American Association of Law Schools (AALS) issued a report with recommendations (Report) on military recruiting at law schools, and on law school responses to recent federal legislation known as the "Solomon II" amendment. That amendment threatens to cut off three specified types of financial aid funds, mainly loans, to students at law schools that do not provide the military with reasonable access to campus, to students, and to certain information about students. The amendment therefore poses twin threats—first, to the ideal of a bias-free education environment and, second, to the availability of federal financial aid for needy and deserving students. This report ("Supplemental Report") supplements the original Report to help schools manage proactively these twin threats.
This Supplemental Report serves three primary purposes. After first summarizing key points of the original Report, this Supplemental Report analyzes new regulations governing Solomon II’s implementation, which were issued on October 23, 1998, and concludes that the October 23 changes do not alter our prior understanding of the law’s requirements. Secondly, this Supplemental Report provides and invites new ideas for amelioration, while also urging schools to consider acting on one recommendation of the original Report: law schools should review and if necessary revise their career services policies to ensure compliance with this law and avert unnecessary entanglement with the military’s discriminatory practices. Finally, this Supplemental Report announces the establishment of a Section Task Force that will work with the office of Representative Barney Frank to secure repeal of the Solomon II amendment as expeditiously as possible, while at the same time compiling information about events at schools around the country. With this Supplemental Report, the Section aims to help law schools balance compliance both with Solomon II and with preexisting, continuing nondiscrimination policies enacted by institutions and/or local governments until Solomon II is repealed, modified or invalidated.
For more information about this Supplemental Report, or the original Report of September 15, 1998, please contact 1999 Section Chair Rick Wood (Capitol) or 1998 Section Chair Sharon Rush (Florida). This Supplemental Report has not been submitted for prior review to the AALS Executive Committee or Membership Review Committee; interested parties should feel free to communicate directly with the AALS by contacting AALS Executive Director Carl Monk. To contact these or other persons or groups, please refer to the Partial Listing of Resources attached to this Supplemental Report.
Cc: Deborah Rhode, President, AALS
Gregory Williams, President-Elect, AALS
Carl Monk, Executive Vice President and Executive Director, AALS
Members, AALS Executive Committee
Members, AALS Membership Review Committee
CONTENTS
I. Executive Summary: New Regulations, Little New *
II. Introduction: De Jure Military Discrimination *
III. The Objective: Avoiding Uncompelled Complicity *
IV. Process: Revisiting Questions of Planning and Timing *
V. Analysis: The Law Requires Only "Reasonable" "Access" *
A. Equality is Not Generally Required. *
B. "Entry" and "Access" Do Not Oblige Support Services. *
C. Access, Equality and Exceptions to the Funding Bar. *
D. Equality and the Military’s Duty to Accommodate School Preferences.*
E. Equality and Investigation. *
F. Reasonableness and the Letter of Inquiry. *
G. Reasonableness, Structure and Construction. *
H. Interpreting "Reasonableness" in Preferences and Access. *
I. The Rationale For Tailored Access and Non-Entanglement. *
VI. Amelioration: Strategies for Maximization *
VII. The Section Task Force: Information and Repeal………………………. 38
Conclusion 42
Appendix of Attachments………………………………………………………….. 45
I. Executive Summary: New Regulations, Little New
The applicable federal regulations on Solomon II may be found in 32 C.F.R. 216.4. As explained in the September 15 Report, these regulations specify three areas of statutory concern regarding military recruitment on law school campuses: 1) "entry to campus"; 2) "access to students"; and 3) "access to directory information on students." Significantly, law schools’ obligations under these three areas of concern are framed in the negative; the regulations specify simply that schools may not "prohibit or in effect prevent" such "entry" or "access." The regulations, however, make no effort to impose on schools a positive obligation to facilitate, support or enhance the activities of the military pursuant to the "entry" and "access" that schools must neither "prohibit" nor "in effect prevent."
These three specific, negative obligations remain untouched in the October 23 changes. In fact, section A of the regulations, which delineates the basic obligations imposed by the statute, remains entirely untouched. These three specific requirements of "entry" and "access" also do not reference issues of "treatment" relating to support or ancillary services. Under the terms of this negative regulatory scheme, "entry" and "access" are separate from "treatment" or other aspects of career services operations, and the October 23 changes leave the three specified obligations of section A exactly the same.
The main changes of October 23 instead are concentrated in sections C.3 and F.1 of the regulations. These sections do not purport to affect the general rule set forth in section A, instead focusing on one of the exceptions to the statute’s access requirements and on the military’s duty to accommodate schools’ "reasonable preferences as to times and places for scheduling" military recruitment. These two changes to relatively narrow provisions of the regulations therefore do not alter the basic requirements spelled out in section A, which makes no effort whatsoever to enunciate "equality" as the general rule or standard. Nor do these limited changes affect the overall analysis or bottom-line conclusions of the September 15 Report.
At the same time, the regulations continue explicitly to specify "reasonableness" as the general standard for "access" in the formal letter of inquiry issued as an appendix both to the original and the revised regulations. Similarly, the October 23 regulations expressly retain the military’s affirmative duty to "accommodate" law schools "reasonable preferences"—even though the duty is formally qualified by the added, but inconsequential, change to that provision. The choice and placement of the word "reasonable" to describe both the type of "access" required and the duty of the military in relationship to law schools corroborates that "reasonableness" is the measure of the general rule enunciated in section A. Because the basic obligations of section A remain untouched, and because the isolated modifications of October 23 do not, on their face, go to those basic obligations, the net effect of the statute remains basically the same.
Thus, four basic reasons counsel against the conclusion that the October 23 changes affect fundamentally or substantially the meaning of the statute:
The statute, and the original as well as revised, regulations discuss only entry and access, and they do so only in the negative; they plainly do not require law schools affirmatively to aid or abet de jure discrimination on their campuses through the positive provision of support services or equal treatment.
Even to the extent that the statute and regulations speak of entry and access, they do not frame those concepts in terms of equality, except in two isolated instances that do not purport to alter the basic rule in section A of both the original and revised regulations.
The formal letter of inquiry appended to both the original and revised regulations, and intended expressly for use in this context, refers specifically to "reasonable" access.
The original and revised regulations impose on the military a positive duty to accommodate law schools’ "reasonable preferences" as to time and place for military on-campus recruiting, even though the revised regulations formally (but inconsequentially) qualify this duty.
As a matter of statutory construction, these four reasons strongly suggest that the law and regulations contemplate a "reasonableness" standard for the allowance of "entry" and "access" under the statute. Reasonableness, in turn, may be measured by various factors.
However, the isolated references to equality under sections C.3 and F.1 of the October 23 regulations highlights a point stressed previously in the Section’s September 15 Report: Solomon II is an opportunity for schools to reconsider, and perhaps reconfigure, their career services policies to implement in a "reasonable" manner the law’s three formal requirements of "entry to campus" and "access to students" and "access to directory information on students." This reconsideration should be undertaken with two goals in mind: (1) establishing protocols that minimize the discriminatory effects of the "entry" and "access" requirements compelled by Solomon II; and (2) introducing new career services programs specifically for sexual minority students as an integral feature of amelioration. This reconsideration also can help law schools think of ways to make their career services office overall more egalitarian, effective and efficient.
As suggested by the sample policies set forth below, this reconsideration need not be a complicated or onerous undertaking. This reconsideration only requires that law schools establish or modify policies to satisfy their obligations under both Solomon II and the nondiscrimination policies and duty of amelioration that also bind law schools. The objective of this reconsideration should be the enactment of "reasonable" general policies on "entry" and "access" that keep military "entry" and "access" both within ranges afforded to "other employers" and consistent with the objective of minimal detriment and maximum amelioration.
It bears emphasis at the outset that this reconsideration is prudential. It is not required by law because the regulations’ general rule plainly does not call for "equality" of "entry" or "access." Nonetheless, this review of existing policies and practices may be a beneficial preventive measure for schools that wish to exercise an abundance of caution due to practical or other reasons. For instance, one reason that such prevention may be important to some schools, as discussed below, is that schools might lose some of their autonomy to the central administration when forced to craft formal replies to military inquiries about this matter. By having policies in place prior to any such inquiry as a result of a precautionary reconsideration, schools will be in a better position to respond to military (or central administration) inquiries about whether the military is "treated" like "other employers"—even though such treatment is not required by law, this prudential reconsideration positions schools to certify that it applies to the military the "same" career services policies that generally are applicable to other employers. Thus, as discussed below, this reconsideration should lead to generally applicable career services policies that tailor carefully the military’s "entry" and "access"appropriately—and within the ranges afforded to other employers—to balance and achieve three aims: minimize discrimination, avoid entanglement and maximize amelioration.
To balance and achieve these three aims, as also recommended in the September 15 Report, the military should be assigned a room on the law campus that is suitable for interviewing but that also is physically distant from the "core" career services facility. Because support services are not mentioned in the statute or regulations, these discretionary amenities should not be provided as one means of avoiding gratuitous law school entanglement with the compelled practice of de jure discrimination on its campus. This last point should not be trivialized; every time law schools deny a military recruiter a free lunch or a place in a glossy brochure, law schools send a message consistent with their Solomon II disclaimers and nondiscrimination principles: discrimination and blackmail are unacceptable as social policy at the dawn of the 21st century. In sum, the analysis and recommendations of the Section’s original Report remain appropriate and applicable.
A final point bearing emphasis at the outset is that we focus below, as we did in the September 15 Report, on the law’s requirements only because the objective is to avoid uncompelled complicity in any form or way in any employer’s practice of de jure discrimination. But we underscore now that the most important question is what our institutions should do, in fairness to all our students, apart from what the law technically requires. We believe that our institutions should not help open up new placement opportunities and then help shut them down to a targeted class of its own students. We believe that no law school should discriminate invidiously against any student on the basis of any identity, whether or not a law allows it. By doing more than this law requires in this particular instance, our profession will be doing less than we should to be fair to all our students. By doing no more than this law requires, our profession can be fair both to deserving students who need financial aid as well as to sexual minority students who suffer the stigma and exclusion of the military’s de jure discrimination.
Indeed, by voluntarily doing more than legally required, law schools allow themselves to be maneuvered into a false choice between need and principle. The law patently is designed to force institutional choices between two classifications of students: one based on class or need and the other based on gender or sexual orientation. This legislation is designed to force schools to select which among their students will be deemed expendable—those that need financial aid to secure a legal education or those that need antidiscrimination protection to secure their professional opportunities. Schools may not be able to avoid altogether the appearance of making such a destructive and divisive choice, but they can avoid exacerbating the fact and effects of the invidious choice that this legislation invites.
If schools permit themselves to be put to false choices by mistakenly or inadvertently doing more than the law requires, they will be compounding the detrimental on-campus effects of military discrimination. These effects can include heightened tensions and on-campus acrimony fueled by the perception or reality that a school’s actions represent or signal a "choice" between one or another of its own students, as well as a betrayal of the larger commitment to nondiscrimination. Schools should not permit themselves to be manipulated into this self-wounding position. Our profession should not permit this law unnecessarily to disturb the peace of law school campuses across the country by its forced reintroduction of flagrant, de jure prejudice into the educational environment. The bottom line of this Supplemental Report, as elaborated below, is that the original analysis of the September 15 Report remains fundamentally the same both because fairness demands it and because the "final" regulations of October 23 remain fundamentally unchanged.
II. Introduction: De Jure Military Discrimination
This Supplemental Report is occasioned in part by the recent issuance of new regulations implementing the statute. As spelled out in greater detail below, revised regulations designated as "final" were issued on October 23, 1998. The changed regulations do not alter our bottom-line advice: because the military continues to discriminate de jure on the basis of both gender and sexual orientation, schools should (1) do only the strict minimum required to comply with such legislation and (2) to the extent they permit recruiting, commence proactive and diligent efforts under the AALS "duty to ameliorate" that offset as much as possible the discriminatory effects of such recruiting. Minimal access and maximum amelioration jointly can help schools meet the statute’s twin threats: Solomon II’s threats to the ideal of a bias-free educational environment and to the need of some students for federal financial aid can be reduced by carefully tailoring the requirements of "entry" and "access" and focusing positively on achieving maximum amelioration.
Until recently, law schools did not permit the military to recruit on campus because the military discriminates de jure in several ways. First, the military refuses to interview, much less employ, any persons whom it deems to be lesbian, gay or bisexual. Second, although the military will employ women for some positions, statutes and regulations prohibit the promotion of women to many career-advancing positions. Third, the military fires and denies various benefits to personnel whom it deems to be lesbian, gay, or bisexual. Fourth, the military engages in horrific practices targeting suspected lesbians, gays, and bisexuals, which include demands that individuals "name names" or be "outed" to their parents and relatives. These "search, out and destroy" campaigns terrorize and victimize individuals with exemplary records of service and no record of misconduct simply on the basis of status or identity.
Law schools play a direct and special role in these "investigations" because military lawyers are the chief instruments of these witchhunts. Foreseeably, law students recruited on campus this year will in time become the legal personnel who seek out and use information extracted through such "investigations" to prosecute service members suspected of being lesbian, gay or bisexual, and regardless of whether those service members in fact have engaged in any conduct that violates military rules. In addition to bringing de jure discrimination directly to the law school, permitting the military to recruit on campus—much less providing administrative support for such recruitment—undermines social and legal commitments to nondiscrimination in far-reaching ways with profound human repercussions.
In response to Solomon II’s twin threats, the AALS Executive Committee decided to "excuse" law schools’ "noncompliance" with its nondiscrimination policy on two conditions: (1) the noncompliance resulted from Solomon’s requirements and (2) law schools took action to ameliorate the detrimental effects of the discrimination coerced by Solomon. As AALS Memorandum 97-46, attached to this Supplemental Report, makes plain, "excused noncompliance" applies only to the military, and only for so long as Solomon II remains in effect in its current form. The Section Report of September 15 therefore encouraged law schools to tailor access to the military and avoid entanglement with its activities, emphasizing instead the duty to ameliorate, until such time as this law is modified, repealed or invalidated. In this way, Solomon II’s twin threats—to the ideal of a bias-free educational environment and to the need of deserving students for financial aid—can be blunted simultaneously until this law is removed or deactivated.
Based on a detailed analysis of the statute and other binding mandates established by preexisting nondiscrimination laws or policies, that Report also distilled ten principles as guidelines for law schools’ response to the new legal environment created by Solomon II’s enactment. That legal environment, the Report emphasized, required law schools to balance Solomon’s new requirements against the practices already established under the substantive nondiscrimination principles embodied in the existing policies of the AALS, the law school, the university and/or local governments. The balanced and contextual approach encapsulated in the ten principles of the September 15 Report was designed to reduce to a minimum the detrimental effects of the on-campus discrimination forced by Solomon’s threat of a financial aid cut-off without triggering the cut-off. To facilitate their easy review, a copy of the ten principles is appended at the end of this Supplemental Report.
In light of the new regulations—which we believe do not make any significant changes—this Supplemental Report identifies new ideas, suggestions and strategies for law schools. As with the original Report, this Supplemental Report is designed to minimize access and avoid entanglement as a way of reducing as much as possible the statute’s twin threats: coupling minimum access with maximum amelioration is the best strategy for schools that wish to preserve as much as possible a bias-free educational environment while also preserving their students’ eligibility for the affected federal financial aid funds. This Supplemental Report’s continuing focus on maximum amelioration ideally will help law schools to offset the remaining detrimental effects of Solomon II’s actual coercion until the law is repealed, modified or invalidated.
III. The Objective: Avoiding Uncompelled Complicity
It bears note at the outset that "excused noncompliance" with AALS ByLaw 6.4 and Executive Committee Regulation 6.19 is an exception to the general principle of nondiscrimination. AALS ByLaw 6.4 expressly embodies this principle, prohibiting discrimination on the basis of "race, color, religion, national origin, sex, age, handicap, or sexual orientation" in every facet of legal education, from application and enrollment to promotion, graduation and employment. Executive Committee Regulation 6.19 specifically establishes "the obligation to provide an equal opportunity to obtain employment without discrimination" on the bases enumerated above. The addition of sexual orientation to the AALS nondiscrimination policy was adopted in 1990 by unanimous vote of the AALS House of Representatives. This principle additionally is endorsed and embodied in similar policies enacted by law schools and/or universities, which likewise mandate equal opportunity in legal education regardless of identities based on race, ethnicity, nationality, religion, gender, age, sexual orientation and physical ability.
Though Solomon II effectively targets some, rather than all, of the identities in AALS and similar nondiscrimination policies, its attack on the basic principle of nondiscrimination sets a dangerous example that should be resisted resolutely. Accordingly, and in direct response to Solomon II’s twin threats, the AALS House of Representatives overwhelmingly passed at the 1998 AALS annual meeting the Resolution attached to this Supplemental Report, reaffirming the legal profession’s substantive commitment to nondiscrimination and calling for Solomon II’s repeal. This Supplemental Report therefore proceeds from the understanding that fidelity to this substantive commitment is more than a mere formality for our profession. This Supplemental Report accepts that an actual fulfillment of this substantive commitment, without a loss of financial aid funds under Solomon II, remains the basic objective of our profession with regards to this matter—and until this law is repealed or invalidated.
To achieve this basic objective, law schools should do only what the law really requires; anything more is gratuitous because law does not compel it. Indeed, doing more than the law requires unnecessarily increases the detrimental effects of on-campus discrimination, which in turn increases correspondingly the need for amelioration. The emphasis on minimizing access and avoiding entanglement is designed to avert this spiraling effect, and to signal unambiguously legal education’s substantive commitment to nondiscrimination.
This emphasis on minimizing access and avoiding entanglement while maximizing amelioration therefore is counseled by the conjunction of four substantive or formal factors: (1) the continuing commitment of our profession to substantive nondiscrimination principles, as reflected most recently by the AALS House of Representatives’ adoption in 1998 of the Resolution attached to this Supplemental Report, which calls for law schools actively to pursue Solomon II’s repeal; (2) the continuing formal mandates of various nondiscrimination policies and laws, as embodied in both institutional and/or governmental enactments; (3) the fact that "excused noncompliance" is a limited exception to a general rule of nondiscrimination, as established by AALS Bylaws and Executive Committee Regulations; and (4) the need to satisfy affirmatively the duty of amelioration, as mandated by the AALS response to Solomon II, as reflected in AALS Memorandum 97-46, also attached to this Supplemental Report. These four factors lead to the conclusions detailed in the original Report of September 15 and developed further in this Supplemental Report.
Those conclusions, as explained more fully in the September 15 Report, mean that amelioration must be viewed as both an immediate and long-term matter; until this law is repealed, modified or invalidated, law schools will need to operate effectively and fairly in the current legal environment. The recommendations in the original Report therefore specify four different levels or kinds of amelioration designed to assist schools in both the short and the long run. In fairness to their institutional communities, law schools proactively should involve various constituencies—most notably the specifically affected students—in planning and conducting amelioration activities. To ensure that amelioration is meaningful specifically for lesbian, gay, bisexual and women students—the ones who most bear the brunt of law schools’ acquiescence to Solomon II’s discriminatory effects—the September 15 recommendations urge law schools to consult directly and continually with those student groups in designing, implementing and maintaining ongoing ameliorative programs and policies. If appropriate, concerned alumni and community leaders also should be included in amelioration initiatives. The bottom line is that all law schools should ensure that amelioration is effective both formally and in practice, which requires advance planning, timely consultation, careful action, dedication of resources and continued vigilance until such time as this law is repealed, modified or invalidated.
IV. Process: Revisiting Questions of Planning and Timing
Everyone concerned also should remember that NO action in response to Solomon II is necessary until a school receives a formal, written "letter of inquiry" from military recruiters. The receipt of the inquiry letter activates a simple administrative process, which allows the school 30 days to respond. See Appendix A to 32 C.F.R. 216 (form letter provides school with 30 days to respond); see also 32 CFR 216.5(b)(1)(i) (if a school does not respond to such an initial inquiry, it shall be given 30 days to respond to any documentation by recruiters of oral policy statements or attempts to obtain policy statements). As advisory General Memorandum 98-3 of the Department of Education, which is appended to the end of this Supplemental Report, explains, financial aid funds are not threatened during this simple process. Under the regulations, NO FUNDS CAN BE CUT OFF SUDDENLY OR SUMMARILY, so schools should not panic due to the mere passage of this law, nor rush prematurely into hasty reactions that might aggravate, rather than ameliorate, the effects of this legislation.
However, reports received since our September 15 Report indicate that some schools have debated whether acting prior to receiving such official inquiries may be beneficial. Our prior Report underscored that adherence to AALS and other institutional and/or governmental nondiscrimination policies could continue unaffected until a law school receives the official letter of inquiry. That view arises from the fact that noncompliance is excusable, and therefore should commence, only when necessary—which by definition is only AFTER a letter of inquiry actually has been received. On the other hand, it also may be that allowing military recruiters on campus in a carefully tailored fashion—in strict compliance with the regulations—may save the school any potential difficulties arising from the need to craft a formal reply to a letter of inquiry. Crafting formal replies may be complicated by various factors at different schools, depending on local or institutional circumstances. For instance, once a letter of inquiry is received, some universities may insist that the central administration itself, perhaps through the general counsel’s office, should make final decisions about law school recruiting policy. Therefore, some schools ultimately may be most likely to maintain the autonomy to tailor a carefully limited policy, as recommended in the September 15 Report and below, only if they act preemptively—that is, prior to receiving the military’s official letter of inquiry.
In light of this subsequent information, we qualify our previous advice to acknowledge and emphasize that the question of when to establish and implement modified policies on recruitment is a pragmatic decision that must follow from a careful consideration of local context. This decision may well depend on the particular dynamics of decisionmaking at individual schools, including the dynamics of faculty politics and relationships with university administrators. We thus encourage all law deans and faculties to evaluate expeditiously local conditions and decisional prospects prior to receiving any official communication from the military. Based on that careful evaluation, law schools should decide in a conscious way whether or not, and if so how, to act preemptively. This decision, of course, should be guided by fidelity to nondiscrimination; the decision should be calculated to produce minimum complicity in the practice of de jure discrimination at the law school.
Whether the final decision is to act before or after receipt of the formal letter, all law schools should plan in advance how they will implement minimal access and maximum amelioration, so that they are ready to respond to the letter of inquiry when, or if, it arrives. To do so, every law school should determine first whether it may decline to allow the military on campus under one of the specified exceptions. To determine the applicability of these exceptions, every school should undertake several simple steps: (1) determine whether that university or school has a "long standing policy of pacifism based on historical religious affiliation" 32 C.F.R. 216.4(c)(2)); (2) investigate whether it wishes simply to exclude all employers from on-campus recruiting, thereby avoiding any obligation to let military recruiters have access to campus, 32 C.F.R. 216.4(c)(3); and (3) ascertain whether it need not permit recruiters on campus because too few students have expressed an interest in the military (using the same standards in making such a determination to other employers), 32 C.F.R. 216.4(c)(6). Some of these exceptions depend on historical facts, but others turn on current policies or practices of general application that, as discussed in further detail below, schools may usefully revisit and revise now in order to minimize access and avert entanglement while also maximizing amelioration.
If none of the specified exceptions can be made to apply, the need for advance planning leads to two other threshold steps that law schools should commence promptly: (1) assessing the amount and relative importance of the affected funds, which if not great might be replaceable; (2) investigating the possibility of finding alternative funding sources, including local or regional arrangements for competitive student loans. Both of these steps are included in AALS Memorandum 97-46, which is appended to the end of this Supplemental Report: "Before making a decision to permit the military to interview, [the AALS] urge[s] each school to examine the actual extent of financial aid and other funds that it is at risk of losing, [and] to explore ways of avoiding the loss of funds through turning to alternative sources." This information permits each school to make informed decisions based on actual facts and numbers, and it therefore should be compiled and analyzed expeditiously but carefully; sometimes the amount in question turns out to be relatively inconsequential—or substantially replaceable.
AALS Memorandum 97-46 next advises each law school to "consider the range of ways that it might adopt to ameliorate the negative effects of granting access, if access were to be granted." This careful advance consideration of ameliorative possibilities should include building or reinforcing a bedrock nondiscrimination local consensus within your law school community, focused in part on educating students and other constituencies on the evils of discrimination and on the reasons for legal education’s refusal to become complicit in identity biases. To "consider the range" of ameliorative possibilities, as urged in AALS Memorandum 97-46, schools should develop advance concrete plans for minimizing access and entanglement when or if the time comes, and these plans should include long-term amelioration initiatives along the four lines or levels identified in the original Section Report of September 15: minimal, general, specific and social. To ensure maximum amelioration, each school’s planning and other decisions should be made and implemented in consultation specifically with sexual minority students, and with similarly concerned law school constituencies. If law schools take these threshold and other advance steps in a careful and caring manner, this profession collectively can ensure that Solomon II will not devolve into unfairness concentrated on some of our most vulnerable students, nor into a generalized backsliding on nondiscrimination principles in legal education.
Finally, we encourage law school deans and faculty to view the Section as a resource for vetting Solomon-related issues. Because this matter must be approached with a long-term perspective, deans and faculties will need to exchange ideas and experiences periodically to enhance progressively their ameliorative initiatives. Because of the general need to facilitate the continuing exchange of ideas and dissemination of information—and as discussed in detail in Part VII of this Supplemental Report—the Section has established a Task Force as an ameliorative measure. The Section Task Force will strive to ameliorate discrimination in two basic ways identified by the AALS in Memorandum 98-23, which lists various ameliorative suggestions and which is appended to the end of the Supplemental Report: (1) by acting as an informational clearinghouse on Solomon-related issues and (2) by working with interested parties for the law’s repeal, modification or invalidation. When developments occur, and from time to time, please aid this amelioration effort: please look for and respond to Task Force communications, please let the Section know periodically what is happening at your school, and some of the lessons that you think should be drawn from your experiences, and please join in the Task Force’s letter-writing repeal campaign, described in greater detail below in Part VII of this Supplemental Report.
Until this legislation is repealed, modified or invalidated, the Section will continue to work with the AALS, schools, groups and individuals to collect and circulate information, to hold informational programs at AALS annual meetings, and to work for substantive change as appropriate. By helping law schools to share, and learn from, the lessons of experience, the Section hopes that law schools’ efforts to contain Solomon II’s discriminatory effects will become more creative and effective as time goes on—and until the law is repealed, modified or invalidated. To contact the Task Force and Section directly, please refer to the attached Partial Listing of Resources.
V. Analysis: The Law Requires Only "Reasonable" "Access"
The September 15 Report emphasized that schools both can preserve their students’ eligibility for the affected federal funds and respond to Solomon II in such a way as to send a message to students and society that this profession does not condone any form of identity discrimination. In our view, this careful tailoring of "access" to actual legal requirements is counseled not only by AALS and other institutional and/or governmental mandates, but also by fairness to our female and sexual minority students, who are targeted for exclusion and stigma under this law and its protection of de jure discrimination. Additionally, law schools effectively have promised this careful tailoring through the representations contained in the disclaimer notices adopted widely and voluntarily by law schools in response to Solomon II. These disclaimers typically explain to the law school community that the school permits recruiters to practice de jure discrimination on their campus solely because of the threatened loss of the affected federal funds. Current reports indicate that schools continue to use this wording in their disclaimer notices, and we therefore continue to take these words as a true reflection of institutional intention and professional objective. Consequently, it is crucial at all times to gauge what the law requires, so that law schools can carefully tailor their adjustments accordingly.
Given this backdrop, the changes of October 23, particularly in sections C.3 and F.1, have prompted some questions about whether the new regulations alter the minimum requirements of "entry" and "access": more specifically, the question is whether the regulations now require law schools to treat military recruiters the same as any other employers, even though the military discriminates de jure against women and sexual minorities? The answer is no, as discussed in detail below.
The new law and regulations do, however, oddly close one loophole: the pre-October 23 law and regulations provided a complete exemption from Solomon II’s requirements for schools that believed they could not permit military recruiters on campus because of state antidiscrimination laws and/or state court orders to that effect. The law and regulations now state that schools cannot deny recruiters access to campus because of state antidiscrimination laws even if a state court explicitly orders a school not to provide such access! 110 Stat 3009-271(c)(3); 32 CFR 216.4(c)(7). Despite this one significant change for schools that may be in such a position, the October 23 changes leave intact the necessary discretion for schools to maintain their students’ eligibility for federal funds as long as they afford "reasonable" "entry" and "access" for military recruiters.
This bottom line means that schools have sufficient room to tailor carefully the "entry" and "access" they allow to military recruiters, and to avoid entanglement through ancillary or support services with on-campus recruitment so as to minimize discrimination and complicity. The positive provision of support services is not required because the regulations frame law schools’ obligations only in the negative: law schools may not "prohibit or in effect prevent" "entry" and "access," but they need not aid and abet the practice of de jure discrimination on their campuses pursuant to such entry and access. Specifically, schools are not obligated by either the prior or the current regulations to support military recruitment with the gratuitous provision of discretionary services that schools may be providing to some, even most, but not necessarily all nondiscriminating employers.
Most importantly, these services include various forms of administrative support, such as the use of law school personnel to schedule the military’s interviews and the use of law school resources to advertise or extol military recruiting opportunities. While law schools are compelled by law to allow the military to use their facilities, Solomon II simply does not authorize the military to conscript law school personnel or resources to do their recruiting work, and any interpretation of the regulations that produces that result would be vulnerable to constitutional challenge. In addition to such administrative assistance, these support services also can include discretionary courtesies or amenities, such as the free provision of lunches for recruiters, and so on; again, any interpretation of the regulations that obliges law schools to provide for the care and feeding of military recruiters would be susceptible to challenge. As noted at the outset, this last point should not be trivialized; every time law schools deny a military recruiter a free lunch or a place in a glossy brochure, law schools send a message consistent with their Solomon II disclaimers and nondiscrimination principles: discrimination and blackmail are unacceptable as social policy at the dawn of the 21st century. Until Solomon II is repealed, modified or invalidated, our profession must devise responses to this legislation that will send this message to our communities and leaders.
Finally, because the law and regulations speak explicitly and repeatedly to "entry" and "access" and not to "treatment" or "services," law schools that elect to provide administrative and ancillary services are voluntarily doing more than is legally required. By aiding de jure discrimination "more" than legally required, schools voluntarily license additional unfairness especially to those among their own students who may happen to be gay, lesbian or bisexual, and who are excluded blanketly from the military’s recruitment process solely on that basis even though their academic records qualify them for interviewing opportunities. This voluntary "more"—whether in the form of excess "entry" and "access" or in the form of uncompelled administrative support—is antithetical both to disclaimer notices that assert otherwise and to legal education’s professed and formal commitment to nondiscrimination. Perversely, this voluntary "more" aggravates the detrimental on-campus effects of the law and correspondingly increases the need for positive amelioration: schools that elect to do more than the law requires correspondingly increase their need to do more amelioration. These general conclusions rest on the points detailed below.
A. Equality is Not Generally Required.
The legislation commonly known as Solomon II denies three types of federal financial aid funds, mostly loans, to students at schools that by policy "prohibit" or by practice "prevent" military recruiters from "entry to campuses or access to students . . . on campuses." 108 Stat. 2663, Sec. 558 (a). This general rule, set forth in section A of the regulations, is unchanged in the current language, which continues to refer to "entry to campuses or access to students." 110 Stat. 3009-271(b)(2). The current legislation also empowers the Secretary of Defense to promulgate implementing regulations in consultation with the Secretary of Education. 110 Stat. 3009-271(g). The regulations generally track the statutory language, and provide for cutting off affected funds to students at a school if it "has a policy or practice . . . that either prohibits or in effect prevents . . . entry to campuses, access to students on campuses, or access to directory information on students." 32 C.F.R. 216.4(a). This negative general rule is not changed from the prior regulations.
Significantly, none of the language in the general rule speaks of equal entry or access. And, in fact, it would be extremely difficult, if not impossible, to speak of "equality" coherently in this matter, and in light of the many variables that affect the design and operation of existing career services offices. Currently, many or most law schools provide some kinds of administrative support and other amenities to employers, but these services and courtesies typically are not provided "equally" to all employers. Instead, and as is often the case in other settings, employers who are "friends" of the law school oftentimes receive selectively preferential treatment, both in terms of basic access and administrative support or other amenities.
This "inequality" is driven by manifold variables, including the fact that law school facilities simply cannot accommodate all employers at the same time; clearly, limited facilities, such as the number of interviewing rooms and limited staff or personnel, require law schools to arrange on-campus "entry" and/or "access" for different employers at different times and rooms. Likewise, the limited number of hours in a workday means that employers generally are not able to pick and choose unilaterally the date they will interview on campus. And to the extent that some days, dates, time slots or interviewing rooms are deemed more attractive than others, the law school necessarily will have to prioritize and schedule employers in some order. This ordering, in turn, usually is influenced by many variables, including the overall matrix of needs, limitations and interests that generally influence a school’s decisions and actions in these and other matters.
More specifically, this ordering of "entry" and "access" oftentimes hinges on employer-related factors, such as the existing relationship between the law school and a particular employer. These arrangements may be reflected in formal policies, or in patterns of practice, or both. For instance, employers who favor the school with generous economic support, or with unusually high and regular rates of employment for its students, or through other means of financial or social support are, in turn, oftentimes favored by schools in their scheduling of interviews, dispensation of courtesies and use of on-campus facilities. However, to our knowledge, no employer claims or receives absolute "entry" and "access"—much less administrative support by entitlement or demand. To our knowledge, no employer can pick and choose when, where and how they will recruit on law school campuses. Thus, current policies and/or practices represent and establish wide ranges of "entry" and/or "access" among non-military employers, and even the most preferred employers do not receive, and could not demand, absolute dominion over the school.
The question, therefore, is: Until this law is modified, repealed or invalidated, where in the existing or potential ranges of "entry" and "access" should schools fit in this discriminating employer in light of the totality of these circumstances? If a school cannot forego the affected federal funds, the answer to this question must, of course, satisfy Solomon II’s minimum requirements. But those requirements are not—and cannot be—couched in terms of equality because there simply is no such thing as "equality" in schools’ current or prospective management of on-campus interviewing generally; within the actual or possible ranges of "entry" and "access," "equality" could mean anything from parity with favored employers at the high end of the range, or parity with employers who, for any number of reasons, are in the middle or the bottom of existing or possible ranges. At most, and as discussed further below, the October 23 changes therefore suggest that the military should not be singled out uniquely for forms or levels of "entry" and "access" that clearly fall below the general ranges; but, given the flux of ranges and variables that already exist, or could be promulgated by revised policies, any fixed or set notion of "equality" becomes an incoherent standard when applied in this particular context.
At most, therefore, law schools only need to permit the kinds of "entry" and "access" that fall within the overall ranges "afforded to other employers" pursuant to the generally applicable career services policies of the law school. Within these ranges, in our view, AALS and other nondiscrimination policies counsel that military "entry" and "access" should be carefully tailored to minimize detriment and maximize amelioration. As emphasized in our original Report of September 15, the challenge for law schools is balancing their protection of their students’ access to financial aid under Solomon II with their protection of their students from the effects of de jure discrimination under AALS and other nondiscrimination mandates that continue to bind legal education alongside Solomon II. As discussed in further detail below, law schools can achieve this balance by reconsidering and redesigning generally applicable policies that will enable schools carefully to tailor military "entry" and "access" to avoid excess entry and access, and to avoid delivery of additional and uncompelled support services, that unnecessarily will entangle the school with de jure discrimination. Although "equality" is not, and coherently could not be, the applicable standard, schools should be prepared to act "reasonably."
Because the ranges of existing or potential "entry" and "access" policies and practices of general application cannot be reduced to some static fiction of "equality," the regulations’ requirements ultimately must be regarded in terms of "reasonableness" and ranges. And indeed, as discussed below, the regulations do speak expressly of "reasonableness" in key respects. Because the regulations fail to specify a meaning for this term, we develop its interpretation in this context further below.
Generally, however, a careful balancing of Solomon II with other binding nondiscrimination policies and the duty to ameliorate will help schools draft and implement general policies on "entry" and "access" that match but do not exceed the law’s requirements. In this way, schools will avoid excess or gratuitous "compliance" that belies the disclaimer notices and exacerbates, rather than ameliorates, the military’s de jure discrimination. In this way, schools can be fair both to their students who need and deserve financial aid in order to secure a legal education as well as to their female and sexual minority students who need and deserve equal placement opportunities to make use of their legal education. Until this law is modified, repealed or invalidated, "reasonableness" entails the sort of balanced and contextual approach to this matter originally recommended in the Section’s September 15 Report.
The "reasonableness" standard also is suggested by constitutional doctrines that serve as a backdrop for the interpretation of this law and regulations. Generally, the constitution protects private or non-federally-owned property from federal arrogation or transgression and limits the use of the federal spending power to avoid abuse or oppression. At some point, these basic principles may be triggered in this matter because the federal government cannot go so far as to effectively appropriate school facilities, personnel or resources, nor enforce the regulations to exploit the spending power so oppressively as to violate lawful and legitimate school interests. Yet, these are potential consequences that an increasingly zealous micro-management approach to "equality" might occasion. Such overreaching may be the consequence of military insistence that the statute or regulations permit them to order school personnel and property to be used by them in specifically dictated ways and times. Thus, increasingly heightened governmental insistence on dictating to schools how and when the military will use law campus resources and facilities makes the regulations incrementally more susceptible to constitutional challenge.
Accordingly, the Gay and Lesbian Rights Project of the ACLU has offered to represent an appropriate plaintiff if the military presses the "equality" issue too far. Not surprisingly, then, the October 23 regulations temper their newly-minted references to "equality" with key continuing references to "reasonableness." For instance, as discussed immediately below, the regulations limit "equality" references to isolated provisions, such as exceptions to the law. Additionally, as discussed further below, the regulations impose on the military a duty to accommodate school’s "reasonable preferences" (even though this duty is formally qualified by the new regulations, as discussed below). This affirmative and express duty is telling: if the military is under a duty to accommodate "reasonable" school preferences, then, logically, schools need only be "reasonable" in responding to military requests for access. Finally, the sample letter of inquiry appended to the regulations also specifies "reasonable" as the requested level of "access" "required" by military recruiters. Given the wide ranges of access already existing for varied non-military employers, the limited placement and use of the term "equality," and the key placement and use of the term "reasonable," we conclude again that the regulations on their face require only "reasonable" access. Under ordinary rules of statutory construction, the net result remains unchanged: the regulations point to "reasonableness" and not "equality" as the ultimate standard in the application of the general rule enunciated in section A of the regulations.
B. "Entry" and "Access" Do Not Oblige Support Services.
It bears emphasis that the regulations consistently refer only to "entry" on campuses and "access" to students or student information. The ordinary meanings of these terms suggest that this choice of wording in the regulations permit schools to preserve their students’ eligibility for the affected funds by allowing what is plainly specified: "entry" to campus and "access" to students and student information. Likewise, the ordinary meanings of the words "entry" and "access" do not suggest, much less require, equal "treatment." Simply, the regulations do not entitle the military effectively to take even partial or temporary control over the school’s resources or support services to aid its discriminatory activities once it has obtained "entry" and "access" to campuses and students.
However, because "access" applies to "campuses" as well as to "students," schools somehow must allow military recruiters to meet with students on campus. To allow recruiters on campus, but to forbid any notice of the event to students at all, probably would be deemed "effectively to prevent" "access to students." The regulations therefore imply that law schools must permit the military to announce their presence in advance and permit students to schedule on-campus interviews with the military. But, the regulations do not—and could not—require that the school assign its staff to perform these tasks for the military. The government simply cannot commandeer law schools by legislative fiat. Schools must allow the military "entry" and "access" to recruit, but they need not perform these logistical tasks to assist the military in conducting its recruitment. Moreover, as discussed below, the military must accommodate the school’s "reasonable" preferences in its performance of these tasks.
Schools may use a variety of means to satisfy this minimal requirement of "entry" and "access," but the duty to ameliorate simultaneously urges schools to do so in a way that reduces as much as possible the detrimental effects resulting therefrom. Thus, schools might designate a reasonable bulletin board for the military to post notices for students. Under this arrangement, the military may "enter" the campus with advance permission to post a notice for interested students, advising them that it will recruit on campus on a certain day and in a suitable room, as previously arranged directly between the law school and local recruiters. This notice may instruct students how to sign up in advance for such interviews directly with the military. This "entry" for the purpose of notification provides "access" because it effectively enables the military to contact students on campus and then meet with them in a suitable room on campus. Once "entry" and "access" are allowed in a "reasonable" way, schools are obliged to do no more.
However, schools must be careful to monitor military entries onto campus, as well as military postings—a point that brings up once again the need for a long-term perspective. Under the regulations, schools have the right to exercise "reasonable preferences" to designate times and places for military entries and access; if schools are reasonable, the military is bound by these designations, but the school must monitor compliance with its preferences. Schools, in other words, must ensure that military recruiters do not intentionally or inadvertently circumvent school efforts to minimize the detrimental effects of military discrimination or to maximize amelioration. Schools therefore must be careful to monitor the designated place for military postings to ensure, for instance, that its disclaimer notice is at all times posted prominently next to the military’s notices, which will remind students of the military’s commitment to discrimination and of the school’s compelled complicity in that discrimination. Schools similarly must monitor compliance with their policies to ensure that the military, or its proxies, are not tearing down disclaimer notices or posting unauthorized military advertisements in places other than the designated bulletin board. Because we have received disturbing reports of such incidents since the September 15 Report, we remind schools that amelioration will not be effective unless the faculty and administration take seriously the need to regularize and institutionalize their supervision of this matter both in the short and in the long run.
C. Access, Equality and Exceptions to the Funding Bar.
The first time that equality arises in the text of the October 23 regulations is in a narrow exception to Solomon II’s funding bar: if a school invokes the exception that it does not permit any employers to interview or recruit on campus. Under the original regulations, a school invoking this exception had to provide "the Military Services with the same opportunities to inform students of military recruiting activities as are available to other employers." 32 C.F.R. 216.4(c)(6)(1). Under the October 23 regulations, this exception is now in 32 C.F.R. 216.4(c)(3), and it provides that: "When not providing requested access [a school invoking this exception must] present[] evidence that the degree of access by military recruiters is at least equal in quality and scope to that afforded to other employers." Due to the ranges of "access" already in place at most schools, as discussed immediately above, this reference to "equal" access under this specific exception to the law does not alter the analysis of our September 15 Report.
As with "other employers," a military "request" to interview on campus on a particular day or time, or in a particular way or room, properly may be considered in light of the school’s needs, limitations and interests. As with "other employers," the military is not entitled to demand an absolute right to interview whenever, wherever or however it wants. Rather, as with "other employers," schools’ responses to military requests to use a particular room or interview on a particular day or time may be influenced by schools’ "reasonable" preferences, interests or priorities, and by their limited rooms, time and personnel; as with "other employers," these limited resources may be allocated by schools in accordance with their own institutional needs or preferences. In the same way that schools do not automatically or always grant the requests of all "other employers" to use school facilities whenever they want, schools retain their right to schedule the military according to their needs, interests and preferences. The regulations explicitly recognize this point, imposing on the military an express duty to accommodate a school’s "reasonable preferences as to times and places for scheduling on-campus recruiting." 32 C.F.R. 216.4(f))(1)(discussed in further detail immediately below).
Because a law school only must be "reasonable" in its "preferences," it need not automatically or blindly extend to the military the "entry" or "access" preferences that it selectively may decide to provide for some, but not all, of its non-military interviewers. So long as it acts reasonably, the school may continue to provide "entry" and "access" to the military within the ranges "afforded to other employers" and in ways that, as with "other employers," recognize school priorities and relevant differences among different employers. The military’s "entry" and "access" thus can be tailored carefully, staying always within the overall ranges of "entry" and "access" that apply to "other employers" as well. Schools thereby provide in fact "entry" and "access" to the military that is "at least equal" to the ranges of "entry" and "access" "afforded to other employers." Although the general rule spelled out in section A of the regulations does not require this level of calibration, the exception to the funding bar of section C.3 may be deemed to do so; more importantly, perhaps, other institutional concerns might counsel this sort of prudential reconsideration and re/calibration. In any event, under the plain meaning of section C.3, schools that adopt policies on "entry" and "access" that are generally applicable to "other employers" will be able to "present evidence" that averts the statute’s funding bar under this particular exception.
The October 23 changes therefore do not affect the original conclusion of the September 15 Report, which acknowledged that schools must allow the military to come onto the law school campus to conduct their recruitment activities in a suitable location. Therefore, schools should identify a room that is suitable for military interviewing and that is on the law school campus, but that is not within, or near to, the core career services facility. This balanced approach to location recognizes that schools cannot "prohibit" or "prevent" military "entry" and "access" to the law campus, but it also recognizes that law schools must act proactively to ameliorate the detrimental effects of the military’s insistence on practicing de jure discrimination on law school grounds. This balanced approach to location is reasonable because it permits the military to conduct its on-campus interviewing while enabling the law school to respect nondiscrimination mandates that bind it, and that are designed to preserve the principled ideal of a bias-free educational environment.
However, the October 23 changes do underscore one particular recommendation of the September 15 Report: law schools should use Solomon II to revisit, and perhaps refine, their existing career services operations to promulgate policies on "entry" and "access" that are generally applicable to "other employers" and that therefore will help avoid even the appearance of singling out the military. This reconsideration, as noted above, is not required under the general rule of section A of the regulations. Yet, this reconsideration may be appropriate for schools who think it wise to exercise an abundance of caution due to institutional and other concerns. This prudential reconsideration need not be a difficult or protracted undertaking. As developed further below, the necessary policies are few, and can be adopted at most schools relatively easily.
As the September 15 Report noted, schools may need only to modify some of their formal policies or functional practices in their career services operations to ensure that they can respond to military requests in a way that avoids even the possible appearance of noncompliance with Solomon II. Similarly, schools may need only re/draft policies that recognize or rationalize existing practices, or policies that recognize variables and introduce new employer-wide practices—while simultaneously advancing the school’s fulfillment of its amelioration duty. Under the October 23 regulations, schools specifically may want to formalize existing practices, so as to be able easily to "present evidence" that it provides the military with "entry" and "access" that falls within the ranges actually "afforded to other employers," thereby avoiding the funding bar pursuant to section C.3 of the new regulations.
D. Equality and the Military’s Duty to Accommodate School Preferences.
This effort to reconsider, and reconfigure as necessary, the schools’ general policies relating to career services also is counseled, though (again) not necessitated, by the second reference to equality in the October 23 changes. The original regulations expressly required that "military recruiting personnel shall accommodate [schools’] reasonable preferences as to times and place for scheduling on-campus recruiting." The October 23 regulations retain this affirmative duty of accommodation, but formally qualify it with language that, like section C.3, is suggestive yet inconsequential. Immediately after re-imposing this duty on the military, the October 23 changes add: ", to the extent that such preferences are applicable to employers generally." 216.4(f)(1). This additional language does not change the analysis of the September 15 Report because the sort of law school preferences under discussion are, in fact, both applicable and applied to "employers generally." The preferences under discussion fall into two basic categories: logistical and substantive.
The logistical preferences are those that already stem from limited resources and school priorities, which lead to the variable ranges of "entry" and "access" discussed above. These logistical preferences include, but are not limited to, the importance of a particular employer to a particular school in light of that school’s needs, interests or priorities. Considerations such as this one, as discussed above, help schools to prioritize and schedule the use of their limited facilities, personnel and resources among numerous employers in an orderly way, which in turn produces the ranges of "entry" and "access" that already exist at most schools either functionally and/or formally. These logistical preferences may be applied to the military under the express terms of the October 23 regulations precisely because they are not only applicable, but also applied, to non-military employers.
However, these logistical preferences may be crystallized, clarified or reinforced through the school’s reconsideration of the "entry" and "access" policies and "preferences" that may be embodied in formal career services policies "applicable to other employers generally." By undertaking a simple but general reconsideration of their career services policies, schools can help to avoid even the appearance of applying a singular set of "preferences" to the military. Though not technically necessary, this reconsideration and reconfiguration may have practical benefits: it positions the school to show the military, the central administration or others that it applies to the military "preferences" pursuant to general policies.
These general policies additionally may incorporate substantive preferences, including sensitivity to the practice of on-campus discrimination by any and all employers. In fact, the substantive preferences that may be incorporated formally into generally applicable career services policies are exactly those rooted in AALS and other institutional and/or governmental nondiscrimination mandates, which are compromised but not nullified by the enactment of Solomon II. These substantive preferences similarly are justified by schools’ legitimate interest in minimizing the disruptive or divisive effects of this legislation and the military’s de jure discrimination, which threaten to pit students against each other on the basis of a false choice between need based on class and principle based on gender and sexual orientation. Until this law is repealed, modified or invalidated, these substantive preferences are positively and specifically mandated by the duty of amelioration, which directly calls upon law schools to minimize as much as possible the detrimental effects of Solomon II’s requirements. Consequently, minimizing discrimination is more than just a "reasonable preference" that the military must accommodate—it is a mandatory, formal duty that, a fortiori, also must be accommodated. And because these substantive preferences are embodied in binding policies that "are applicable to employers generally," they are expressly authorized by the October 23 regulations. As with the logistical preferences, these substantive preferences are not only applicable, they also are applied, to non-military employers.
Therefore, as noted further below, one substantive preference that should be codified in law schools’ prudential reconsideration of career services policies is an express rejection of de jure discrimination, no matter which employer seeks to practice it on campus. General career services policies should establish that employers exercising de jure discrimination generally will be accorded the lowest range of priority in the school’s management of its career services time, staff, and facilities. Given AALS and other nondiscrimination mandates, the practice of de jure discrimination can and should be a factor on which to base general career services policies. In spirit and letter, AALS and other nondiscrimination mandates suggest that this factor should weigh heavily in the protocols and priorities that schools incorporate into their career services policies to minimize the effects of the military’s discriminatory incursions.
Of course, the design and implementation of both substantive and logistical preferences must be reasonable, which means that they must be crafted and managed in a way that permits meaningful "entry" and "access" to the military, and no more. This point already was recognized in the September 15 Report. The point now, therefore, is that the October 23 changes found in section F.1 do not change the analysis or recommendations of the original report in this regard, either.
E. Equality and Investigation.
Section F.1 of the October 23 regulations also discuss equality of access in explaining when the military may "investigate" whether a school is in violation of the regulations. This provision authorizes an investigation when, or if: "Military recruiting personnel cannot gain entry to campus, cannot obtain access to students on campus, or are denied access to student directory information . . . ." Thus, an investigation is proper under the regulations only if military personnel cannot gain "entry" to the campus or "access" to students.
On their face, the regulations do not authorize an investigation when the military may gain "entry" and "access" within the ranges available to "other employers" pursuant to generally applicable policies, but such entry or access is not what the individual military recruiter might have fancied personally. Although individual recruiters may ask to be "treated" in all respects like other employers, the regulations and law require neither equal "access" nor preferred "treatment." They also do not oblige law schools to cater to the whims or desires of individual recruiters. Thus, an investigation threatened or pursued by a local recruiter under these circumstances should be questioned through administrative or other recourse and, if necessary, challenged as beyond the scope of the statute and the regulations.
The language of 216.5(b)(1)(i), as well as the "summary" introducing the October 23 regulations, reinforce this conclusion. This provision and summary state that the responsibility for initiating an investigation rests with the Secretaries of particular branches, such as the Army, rather than with local recruiters. And the summary emphasizes that decisions to initiate investigations should be supported by written documentation that confirms and demonstrates the absence of "entry" or "access."
The Secretary of a particular branch may initiate an investigation "[w]hen requests by military recruiters to schedule recruiting visits . . . are unsuccessful." Therefore, to avoid an authorized investigation, schools simply must not "prohibit" or "in effect prevent" either "entry" or "access," but such "entry" and "access" also must be tailored to ameliorate its detrimental effects. This effort to balance the mandates of Solomon II with nondiscrimination mandates that equally bind law schools might be less than ideal for some aggressive military recruiters, who might push for more than the law requires. If they do so, as recommended here and in the original Report, schools need not be intimidated by exorbitant demands for an imagined "equality" of "entry" or "access" that some local recruiters may be inclined to assert. When faced with exorbitant demands by an overzealous recruiter, schools should make clear in writing that "entry" and "access" have been allowed in fact pursuant to, and in accordance with, the career services policies applicable to employers generally. If local recruiters then persist with exorbitant demands, the school should request, and insist on, prompt contact with the responsible superiors until reaching a responsive official.
F. Reasonableness and the Letter of Inquiry.
The regulations also provide a sample letter in the appendix that discusses access. That letter is the official inquiry to be sent to schools that have not allowed "entry" or "access." That letter of inquiry concludes in the final paragraph that, "Successful recruiting requires that department of Defense recruiters have reasonable access to students on the campuses . . . ." Nowhere does that letter state or indicate that recruiters must have some form of imagined "equal" access. Nevertheless, the letter does ask school responses to "highlight any difference between access for military recruiters and access for recruiting by other potential employers" (emphasis supplied). Of course, if the military’s "access" is somewhere within the ranges of "access" provided to other non-military employers pursuant to generally applicable policies—though still carefully tailored to satisfy the school’s duty to ameliorate—there is nothing for schools to "highlight" because there is, in fact, no difference that singles out the military. This provision therefore recalls, once again, the importance of adopting simple general rules that will enable the school to state in writing that the military’s "access" is governed by the same general rules and career services policies that apply to "other employers." In this way, the school can keep its contacts with the military short and direct.
More substantively, the deliberate selection of the word "reasonable" in the sample letter, coupled with the subsequent request for schools to highlight differences in their responses to the letter, means that "reasonableness" and "difference" are not mutually exclusive. The sample letter, in other words, contemplates the possibility of both at once: the sample letter suggests that "difference" may indicate a possible lack of reasonableness, but that difference does not necessarily lead to that conclusion. Thus, access may be both reasonable and different—if the result is that the military is provided a meaningful opportunity to recruit on campus, even if the military does not receive, for example, the sort of preferential access that key employers or friends of the law school may receive. Given AALS and other nondiscrimination mandates, differences that flow from efforts to ameliorate but that stay within the general ranges of "entry" and "access" for other employers are reasonable and permissible.
G. Reasonableness, Structure and Construction.
Finally, the regulations do not require equal access based on the structure of the regulations and recent history of school reaction to Solomon II. In terms of structure, the regulations show that the drafters knew how to describe equal access: the exception in section C.3, for example, uses the plain language that employers denying "requested access" must show either that no employers have access or "that the degree of access by military recruiters is at least equal in quality and scope to that afforded to other employers." If the drafters meant this standard to be the general rule, then this language simply would have been placed in section A as part of the general rule. For example, section A easily could have been written to read that funds will be cut off for schools that "do not grant military recruiters the same degree of access in quality and scope afforded to other employers." Similarly, the sample letter in the appendix to the regulations could have been written to conclude that "successful recruiting requires that military recruiters have the same degree of access to campus and students in quality and scope as that afforded to other employers." In both instances, however, the drafters elected to avoid changes of language in these key locations, instead relegating new references suggestive of equality to isolated or specific situations.
These choices of language and placement are significant in light of the recent history of military recruiting on campuses pursuant to Solomon II. Some schools adamantly have not provided "equal treatment" even though they have provided some form of access. Most notably, perhaps, Harvard Law School maintains that military recruiters have the legally requisite level of "entry" and "access" because Harvard student groups on campus directly may invite speakers who may engage in recruiting while there. At Harvard, therefore, students not concerned about their complicity in de jure discrimination must handle the military’s requests for "entry" and "access." The military is well aware of this situation, and Harvard students continue to be eligible for the affected funds. Given this history, as well as other creative responses to the regulations being tested at different schools, the October 23 regulations could have been drafted to confront head-on, under section A of the revised regulations, this sort of "inequality." Tellingly, they were not. The structuring of the October 23 regulations as a whole, in the face of this history, leads to the conclusion that reasonable "entry" and "access" are all that schools are obliged to provide.
H. Interpreting "Reasonableness" in Preferences and Access.
In our view, a fair interpretation of "reasonable" is the allowance of "entry" and "access" that provides a meaningful opportunity for the military to recruit on campus but that also is tailored carefully to the school’s interests, limits and preferences. These interests, limitations and preferences of course include the kinds of considerations already applied to non-military employers. These interests, limitations and preferences therefore encompass the limitations of a school’s physical facilities or personnel as well as the status of particular employers vis-a-vis the school. However, these interests, limitations and preferences also encompass reasonable efforts to sustain the school’s fidelity to the institutional and/or governmental nondiscrimination policies that continue in effect alongside Solomon II—policies that, of course, apply generally to "other employers" as well. Indeed, compliance with AALS and other binding nondiscrimination mandates is more than a mere "preference"—it is a formal and substantive obligation. As with "other employers," fidelity to nondiscrimination is one of the needs, limitations or "preferences" that a school may exercise in a "reasonable" way in responding to a military "request" for "entry" or "access," and nothing in the October 23 regulations suggests otherwise. As with other employers, a school is entitled to be fair to all its students, and to avoid pitting one group of students against others, despite a forced imposition of a third party’s discriminatory placement activities that violate its own policies and ethics.
As noted above, AALS ByLaw 6.4 and executive Committee Regulation 6.19 continue to mandate nondiscrimination, even when schools are forced to permit de jure discrimination on their campuses as a result of Solomon II. The AALS has "excused" "noncompliance" with ByLaw 6.4 and Regulation 6.19 so that schools may preserve their students’ eligibility for the affected federal funds. But attached to excused noncompliance is a duty to ameliorate the effects of such noncompliance. This duty, in particular, mandates that schools take affirmative steps to minimize the detrimental effects of the intrusions compelled by this law and regulations.
Logically, amelioration has two sides. The first entails doing no more than the law requires because doing more voluntarily aggravates discrimination and increases the duty to ameliorate. The second entails doing something new and more affirmatively to offset the military’s inevitable introduction of de jure discrimination onto the law school campus. AALS policy, as well as similar university and/or local mandates, provide schools with formal and substantive grounds for seeking both to contain or limit the detrimental effects of the military’s on-campus presence and conduct as well as to undertake proactive ameliorative efforts. This need for balance, emanating from professional and/or legal obligations, without doubt is a legitimate school interest, and therefore must inform the overall "reasonableness" equation.
To be "reasonable" in light of the foregoing, law schools must in our view: (1) permit the military to use a room on the law campus that is both suitable for recruitment and distant from the core career services facility; (2) avoid entanglement either through excess "entry" and "access" or through discretionary support services that the law neither mentions nor requires; and (3) initiate, fund and sustain ameliorative activities to reduce the inevitable effects of even "reasonable" access. To avoid even the appearance that they are singling out the military in pursuing these steps, schools should put into place career services policies that apply the schools’ logistical and substantive "preferences" generally to the ranges of "entry" and "access" allowed for "other employers." By being reasonable in this way, and by acting pursuant to generally applicable policies, law schools can meet Solomon II’s twin threats to the need of some students for federal financial aid and the need of all students for a bias-free educational environment. By being reasonable in this balanced way, schools can avoid false and destructive choices between need and principle as well as the on-campus tensions that may be sparked by unbalanced choices or voluntary discrimination.
In sum, good faith efforts by law schools to balance Solomon II’s requirements with the duty to ameliorate are not, on their face, unreasonable. On the contrary, balancing the two binding mandates through a careful tailoring of access so as to minimize detrimental effects and avoid uncompelled entanglement, while still allowing the military a meaningful opportunity to recruit, is the best that schools can do in the current legal environment. So long as law schools permit the military a form or level of "entry" and "access" to the law campus that are within the ranges of "entry" and "access" provided to "other employers," and so long as these forms or levels of "entry" and "access" in fact provide a meaningful opportunity for military recruitment, then schools may—indeed, must, under binding AALS amelioration policy—take positive steps to reduce as much as possible the effects of de jure discrimination practiced on their campuses by military recruiters. In our view, these positive steps generally entail, or include, the careful tailoring of access to minimize the presence and effects of military discrimination as well as to avoid altogether voluntary school entanglement with, or administrative support for, such discrimination. Until this law is repealed, modified or invalidated, schools must find "reasonable" ways of being fair both to students who depend on federal funds for their access to a legal education as well as to students who depend on our institutions to protect their right to equal professional opportunity.
I. The Rationale For Tailored Access and Non-Entanglement.
Tailoring access and avoiding entanglement are important both symbolically and substantively. Tailored access and non-entanglement serve as continuing reminders to students and society that a fundamental difference does exist between the military and "other employers"—only the military practices de jure discrimination. This insistence on the practice of de jure discrimination is invidious, and perpetuates both ignorance and injustice at a time when the nation formally and generally has repudiated prejudice and bias as the bases of social policy. The legal profession must affirm that the day for denying full citizenship to any persons, including women and sexual minorities, has passed.
The insistence on practicing de jure discrimination specifically on law school campuses is especially insidious. Legal education’s commitment to the transmission and understanding of basic national values—including equal opportunity to pursue life, liberty and happiness—is inseparable from its mission to educate those who, as lawyers, judges, professors or lawmakers, will have responsibility for preserving and advancing civil society. It therefore is particularly heinous of Congress to compel law schools either to become complicit in the military’s insistence on discrimination or risk jeopardizing financial aid funds for students who need assistance in order to obtain a legal education. As a policy matter, the bottom line is inescapable: needy and deserving law students should not be manipulated as vulnerable pawns to hold schools hostage to the military’s practice of de jure discrimination on the basis of gender and/or sexual orientation.
Tailored access and non-entanglement make these fundamental points substantively and symbolically. By carefully tailoring their adjustments to Solomon II to meet the law’s requirements and no more, law schools will reaffirm that the military should be treated differently because it insists on acting differently—and reprehensibly. Tailored access and non-entanglement serve as a continual reminder to the law school community of the nondiscrimination principle and its foundational importance in a plural democracy: by doing only what the law really compels, students, communities and lawmakers may come to understand that law schools refuse to treat military recruiters like nondiscriminating employers precisely because military recruiters do discriminate, and because federal legislation attempts to pit the commitment to nondiscrimination against a commitment to access to a legal education. We repeat: every time schools deny a military recruiter a free lunch or a place in a glossy brochure of employers, law schools send a message that discrimination and blackmail are unacceptable as social policy at the dawn of the 21st century.
Solomon II is invidious, and must be resisted, precisely because it calculatedly and cynically pits need against principle, inviting vulnerable members of the same campus community to choose between the need for federal funds and principle of nondiscrimination. Solomon II’s coerced choices and twin threats can breed division and cause on-campus tensions between members of the law school community through de jure discrimination because it targets and exploits two kinds of vulnerability—one based on class and another based on gender and sexual orientation. The statute’s selection of these respective vulnerabilities to divide these classifications of students should not force schools crudely to "choose" between the needs and principles that affect these two classes of their own students! Tailored access and non-entanglement can help schools avoid on-campus acrimony between those who would make contrary choices regarding need and principle—or, perhaps even more destructive for an educational environment, between students whose financial aid is threatened by Solomon II and students whose self-respect and social worth are likewise threatened.
Until this vicious law is repealed, modified or invalidated, tailored access and non-entanglement are important because this approach allows schools to balance and honor their commitments of respect, fairness and dignity to all students. Tailored access and non-entanglement signal schools’ balanced and reasonable commitments both to equal educational access through financial aid and to equal professional opportunity through nondiscrimination. Minimum complicity and maximum amelioration through carefully tailored entry and access, and no more, matter because they help to establish the nation’s professed legal and social values within, and as part of, the educational environment.
VI. Amelioration: Strategies for Maximization
In light of the above, amelioration should include law school reconsideration and, if warranted, reconfiguration of career services policies to make it relatively easy to fulfill sections C.3 and F.1 of the October 23 regulations. Though technically not required by the law or regulations, this reconsideration can be beneficial because it can help schools to maintain their autonomy over career services policies. More broadly, this reconsideration can be beneficial because it also can reveal other ways in which schools may make their existing policies and/or practices more egalitarian, efficient or effective. Most importantly, this reconsideration can help schools devise means of "specific amelioration"—that is, amelioration designed specifically to open new placement opportunities for sexual minority students, who are excluded categorically from any opportunities created by Solomon II’s compulsion.
The chief or immediate focus of this reconsideration, however, should be to ensure full yet minimal compliance with Solomon II through a carefully tailored approach to "entry" and "access" that avoids entanglement and maximizes amelioration. This reconsideration therefore does not envision a complex project. Instead, this reconsideration envisions eight basic policies of general application, some of which may be in place already but may need some modification:
A formal, written policy that authorizes and directs the career services office to manage the time, staff and facilities of that office with the objective of maximizing efficiency in the use of interviewing rooms and time slots;
A formal, written policy that authorizes and directs the career services office to schedule interviews in rooms not located in the core facility, as warranted by the school’s logistical and substantive considerations or preferences;
A formal, written policy that authorizes and directs the career services office to prioritize and manage the scheduling of interviews among employers along a range of levels or forms that accord to that particular school’s needs, interests or preferences and pursuant to AALS policy.
A formal, written policy that rejects the practice of de jure discrimination as destructive of the conditions necessary to an educational environment, that identifies it and its divisive or disruptive on-campus effects as substantial factors in determining employer priorities, and that specifies de jure discrimination on any protected basis as grounds for according to such employers the lowest level of priority in the overall management of career services time, staff and facilities.
A formal, written policy that authorizes and directs the career services office to coordinate the on-campus activities of large employers with multiple hiring units in advance, so as to enhance efficient use of facilities and resources and advance the school’s needs, interests or preferences.
A formal, written policy that prohibits entirely the delivery of discretionary support services to any employer who denies interviewing and/or employment opportunities to any de jure classification of students in good standing, except when the classification clearly is based on traditional hiring criteria used generally by the school and other employers (i.e., grades, activities, experience).
A formal, written policy that requires all employers to secure actual and written permission from the career services office for: (a) every entry onto the law school campus and (b) every posting of any materials whatsoever anywhere on the law school campus; this requirement of written permission easily can be facilitated by the use of email and faxes, and it is wise procedure to establish a written record establishing that schools in fact permit "entry" and "access" in accordance with Solomon II; this requirement also is necessary to preclude the possibility of actual or perceived confusion over specific entries and postings and to enable schools to monitor military and other employer entries onto the campus.
A formal, written policy that authorizes and directs the career services office to charge employers who use law school resources "reasonable" fees for use of law school staff, facilities and services, but that permits the waiver of all such fees for all employers who certify truthfully and in writing to the law school that they do not discriminate on the basis of any category referenced in AALS, law school, university, and/or state or local nondiscrimination policies
These eight examples of course are general and basic. These examples are intended only to help schools identify the kinds of issues that they should address in the recommended precautionary reconsideration of career services policies in light of Solomon II. These examples, therefore, need to be developed into customized policies by individual schools to fit their particular needs, interests and preferences. At all times, however, the objective should be carefully tailored compliance to minimize detriment, avoid entanglement and maximize amelioration through well-crafted policies of general application.
Apart from amplifying this recommended reconsideration as an integral feature of amelioration, we encourage law school deans and faculties to consider one new amelioration idea received since the September 15 Report. This idea is simple: to coordinate in advance the on-campus recruitment of all military branches so that they occur on the same day. Again, for schools that want to exercise an abundance of caution, this coordination should be undertaken pursuant to an overall reconsideration of career services policies (such as sample policy No. 5, above), so that it clearly falls within the ranges of "entry" and "access" afforded to "other employers" pursuant to "preferences" that are "applicable to other employers generally."
The purpose of this coordination is to facilitate amelioration: the day selected by the military for its on-campus recruitment then can serve as the date for informational programs and related activities to educate the community about the practice of de jure discrimination, which would be occurring on that very day in their midst. This idea neatly couples amelioration to the on-campus event that chiefly creates the need for it. Law schools’ advance coordination of the relevant military branches to schedule their on-campus interviews for the same day can be accomplished both legally and practically.
Legally, it can be accomplished because the regulations impose on the military a duty to accommodate schools’ reasonable preferences as to time (and place). Therefore, the law school will need to be "reasonable" in these efforts. But because the new regulations limits this duty of accommodation to those "reasonable preferences" that are "applicable to employers, generally," this idea probably should be part of law schools’ reconsideration of their existing policies and practices. For instance, as a result of this reconsideration, a school may decide to adopt a policy that calls upon all employers with multiple offices, such as regional or national firms with many branch offices, large banks with several departments or branches, and governmental entities with multiple hiring agencies, to coordinate their plans as a way of making more efficient use of the school’s limited interviewing times and spaces. With such a general policy in effect, law schools can exercise this preference for coordination and efficiency with regards to the military as well.
Though the logistical details can vary according to circumstance, this coordination also can be accomplished practically with careful advance planning at the beginning of every school year. For instance, career services offices may initiate contact with the local military recruiter of each relevant service in late summer or early fall of every year, offering several suitable and reasonable dates and asking the recruiter to select two or three convenient dates from those options. After obtaining the dates from each recruiter, the school can identify matching dates to coordinate and schedule a final date for all the services. So long as the law school acts well in advance, is reasonable in the dates offered, and can point to a general policy that applies to other employers, the military will have to accommodate these efforts.
By coupling amelioration with recruitment, this coordination also permits faculty and students to sponsor timely educational events. These events may include both "official" law school programs as well as student-sponsored actions to help raise awareness of discrimination as a social evil. Individual faculty members also may decide to conduct other events on that day to help ameliorate the effects of the military’s on-campus presence on that day. Until Solomon II is repealed, modified or invalidated, this idea of coordinated interviewing allows schools both to contain discrimination and to showcase amelioration, and to do so simultaneously.
Another creative and appropriate ameliorative measure is expansion of law schools’ library collections on sexual orientation and law. To expand law library collections on sexual orientation, interested faculty members should request that their library staff provide them with a listing of the current holdings on sexual orientation and the law, and then suggest additions to the collection. This relatively simple action will help students and other members of the community to access more easily unprejudiced materials on sexual orientation sociolegal issues, thereby helping to promote greater awareness and education of homophobia in American law and society. This action, in time, may help to lessen the influence of homophobia generally.
Finally, the Section has decided to undertake direct ameliorative activities by establishing a Task Force that will pursue at least two of the ameliorative activities listed in AALS Memorandum 98-23, appended to the end of this Supplemental Report. The first is informational and the second is legislative. Both, as noted immediately below, can make a difference—but the Section Task Force and the other groups with which it is working on these two projects need your help to make the necessary difference.
VII. The Section Task Force: Information and Repeal
To ensure that Solomon II does not lead to generalized backsliding on nondiscrimination principles in legal education, the Section has established a Task Force with two primary projects: (1) to collect, compare, analyze and disseminate experiential information about Solomon II and (2) to work for the expeditious repeal, modification or invalidation of Solomon II. As outlined below, the Section Task Force already has begun work on both of these efforts, and updated information on these efforts will be reported in Section Newsletters until such time as this matter is brought to a successful conclusion. The Task Force plans to work with the AALS, member schools, other groups organized to undo Solomon II, and any other interested parties to ensure success in both projects. But to do so, the Task Force needs, and is looking for, individuals to help on both projects: after reviewing the following synopsis, please refer to the Partial Listing of Resources appended to this Supplemental Report to contact the Task Force.
The Section Task Force already has developed a Solomon II questionnaire, a sample copy of which is attached to the end of this Supplemental Report. The questionnaire will be sent to all Section members and to all law school deans requesting detailed information about law school experiences with and reactions to Solomon II’s pressures. This questionnaire is designed to overcome the lack of comparative information that many Section members have reported as a problem in their schools’ responses and adjustments to the (perhaps untenable) demands of local military recruiters, which sometimes extend beyond "entry" and "access" despite the regulations’ repeated use of those terms to describe the demands of the law. By compiling information and disseminating it widely, the Section Task Force aims to supply law school faculties and administrations with the necessary tools to respond more confidently and resolutely to such demands. But this informational effort depends on the prompt and sustained cooperation of Section members and law school deans: when you receive the Task Force’s questionnaire, please respond fully and expeditiously, and urge your dean to do likewise. And if you can volunteer to help the Task Force process the collected information, please contact Task Force Co-Chair Dan Barnett by using the attached Partial Listing of Resources.
In addition to this informational project, the Section Task Force has begun to work with the office of Representative Barney Frank to secure a legislative repeal or modification of the statute. The Section has undertaken this repeal effort not only pursuant to listing of ameliorative activities set forth via AALS Memorandum 98-23, but also in direct response to the Resolution adopted by the AALS House of Representatives during the 1998 AALS Annual Meeting in San Francisco. This Resolution, sponsored by Dean L. Kinvin Wroth of the Vermont Law School, is binding AALS policy, and calls for "the Executive Committee [of the AALS to…] to support elimination of the provisions of the [Solomon II] amendment…[and] to encourage and assist member schools and their students and faculties to call upon their own Congressional delegations to seek elimination of those provisions." Following the adoption of that Resolution, AALS Executive Director Carl Monk wrote and transmitted letters to leaders of Congress and to the President calling for elimination of Solomon II. The repeal effort of the Section Task Force follows up on AALS Memorandum 98-23, on the 1998 House of Representatives’ Resolution, and on the letters of the AALS to Congress and the President.
Pursuant to the strong and repeated advice of Representative Frank, this repeal effort will focus on a nationwide letter-writing campaign directed at legislators of both political parties in both chambers of the Congress as well as the President. According to Representative Frank, our collective contribution to this effort will be to write personalized and substantive letters to the Executive Administration and to our Representatives and Senators, which will permit him to do his legislative work more effectively with the White House and with colleagues both in the House and in the Senate. The letters should be written as a message to the Administration and to our Senators and Representatives, from us both as educators who personally experience the fallout of this ill-advised law and as voters who will cast ballots in the future based in part on their positions and actions regarding Solomon II’s expeditious repeal. However, our letters need not be long or complex; on the contrary, they should be brief (a page or two) and to the point, while still conveying a personal and substantive view of the statute and the need for its repeal.
Representative Frank also has identified this semester—the Spring 1999 semester—as the key window of opportunity because Congress next will vote on the appropriations bill to which Solomon II is attached sometime during the upcoming summer. Given this time frame, Representative Frank has set forth two specific requests: that we produce a wave of letters now—during the first half of the Spring 1999 semester—and that we produce a second wave toward the end of this same semester. The Task Force therefore is prioritizing the organization and commencement of this letter-writing campaign, and will continue to prioritize it until the semester’s conclusion or the Congressional vote in the summer.
Please remember that Representative Frank has emphasized to us that all of our letters, while being short and to the point, must be both personalized and substantive. Based on his legislative experience, Representative Frank has stressed in his comments that form letters, as well as petitions or multiply-signed letters, tend to be discounted by lawmakers because those forms of communication inherently do not exhibit a personal and substantive commitment to the issue of the communication. For similar reasons, telephone calls are discounted, as are communications from voters in other districts or states. To be persuasive, letters should be brief but must convey both a strong and personalized sense of conviction on this repeal effort, and must express explicitly your intent to vote in the next election based (at least in part) on the recipients’ response to this repeal effort. We must write individually, briefly and substantively, as both educators and voters, and also target our letters to our specific Representatives and Senators, as well as to the Chief Executive.
To conduct this campaign and ensure that our letters are effective, the Task Force is developing a nationwide organizing network and packet of information for widespread, individual use. Both of these efforts originated at Boston College Law School, where Solomon II’s impact triggered the formation in 1998 of a faculty-student Committee to Repeal the Solomon Amendment (Committee). The Committee secured an independent sign-up and information table at the 1999 AALS Annual Meeting, where it distributed its packets of information and began collecting names for the nationwide letter-writing and repeal network. The Committee and Section Task Force therefore have begun to work together, building on the Committee’s existing network and using the Committee’s existing packet of information to launch the Section Task Force’s activities.
The informational packet, a copy of which is attached to this Supplemental Report, provides general "talking points" for your use, and specifies how letter-writers may obtain the addresses of their Senators and Representatives. These "talking points" are designed to aid Section members and other concerned parties easily to compose and transmit brief, personalized and substantive letters that explicitly link this issue to the next round of elections. The nationwide network will help to catalyze and sustain the two waves of letters, and will work to ensure that the Executive Branch and lawmakers from all states and most Congressional districts receive as many letters as possible during both waves, and up until the vote on repeal actually occurs and is signed into law.
Representative Frank’s advice has identified goals for our letter-writing campaign that we believe to be very achievable. The key will be your responsiveness and timeliness. If we act this semester collectively as advised by Representative Frank, we stand a good chance of celebrating Solomon II’s repeal or modification during the summer months. If we act in unison and on time, we may begin the next academic year without coerced discrimination in our midst. Please look for communications from the Task Force in your mail, review them carefully, and respond to them decisively. And please remember that the Task Force urgently needs volunteers like you to make these projects a success; please use the attached Partial Listing of Resources to make sure that you participate at least in the letter-writing campaign, and in other repeal or ameliorative efforts if your time permits.
Finally, the Society of American Law Teachers (SALT) also has established a Task Force to strive for the repeal, modification or invalidation of this law. In connection with this effort, SALT has endorsed the Ten General Principles identified in the original Section Report, dated September 15, 1998, and has produced an informational brochure for widespread distribution as part of the repeal effort. Through these and forthcoming actions, SALT is helping to accomplish the same goals as the Section: to raise awareness and resistance of Solomon II’s twin threats, and to ensure minimum complicity with coerced discrimination until such time as repeal, modification or invalidation finally is accomplished.
The SALT and Section Task Forces also are collaborating with each other and with the Committee for maximum efficiency and impact. This trilateral cooperation will produce synergies in part because SALT already has in place a national network of contact persons working on the SALT multi-year "Action Campaign" that is designed to preserve diversity and promote equal opportunity. Thus, members of SALT, members of the Section, the Committee and other interested parties have come together to restore nondiscrimination as the standard on law school campuses. If we join and stick together during the remainder of this semester, our joint efforts may consign Solomon II to the dustbin of history by the time we next meet as a Section.
Conclusion
The October 23 changes to the regulations implementing the Solomon II amendment do not alter in any fundamental or substantial way the analysis and recommendations set forth in the original Section Report. As before, schools must be reasonable. In our view, to be "reasonable" schools must find a room on the law campus suitable for interviewing, but pursuant to AALS and other institutional and/or governmental policies, this room should be distant from the core career services facility.
However, the October 23 changes do underscore a point made in the September 15 Report: schools should revisit their existing career services operations to ensure that their tailoring of "entry" and "access" to minimize the detriments of on-campus military discrimination fall within the general ranges of entry and access "afforded to other employers" pursuant to policies and "preferences" that are "applicable to other employers generally." In this way, schools can avoid even the appearance of singling out the military. By positioning schools to provide short and direct answers to military inquiries about entry and access, this prudential reconsideration can help schools to avoid autonomy issues that sometimes arise when central administrations become involved in this matter.
This recognition of formal and/or functional ranges in schools’ existing or prospective approaches to "entry" and "access" refutes the imagined notion of "equality" in the context of entry or access, because no such thing in fact exists: schools already provide different forms or levels of entry and access to different employers, depending on a host of factors. The question, therefore is, Where should schools fit the military? This question is answered by the need to be "reasonable" and by the need to satisfy nondiscrimination mandates and the duty of amelioration. The answer to this question therefore is, Schools should provide the military a meaningful opportunity to interview students, but in a way both that reminds the law school community of the evils associated with the military’s insistence on practicing de jure discrimination and that minimizes law school complicity in those evils.
Finally, while schools that cannot forego the affected federal funds may have to compromise the bias-free ideal of the educational environment, they need not additionally perform support services that aid and abet military discrimination, and that therefore aggravate, rather than ameliorate, the detrimental effects of de jure discrimination on their campuses. The regulations do not, and could not, require that law school property and personnel effectively be conscripted for military service. Schools should draw the line on complicity exactly where the law marks it: at not "prohibiting" "entry" or "in effect denying" "access." In this way, law schools can minimize the statute’s twin threats—first, to the bias-free ideal and, second, to the ability of needy students to obtain federal funds to pursue a legal education.
By doing more than legally required, schools effectively choose to entangle themselves with the evils of de jure discrimination. This gratuitous complicity not only is incompatible with the claim asserted in school disclaimer notices—that schools merely are complying with distasteful legal obligations—it more generally undermines the professed commitment of this society to substantive nondiscrimination principles and to equal opportunity for all, regardless of identity. By volunteering to do more than legally required, law schools permit this legislation to force a false choice between need and principle, which signals that either one group of students or another may be expendable to the institution or profession, and thereby can divide the law school community and cause ripples of on-campus tensions. By voluntarily doing more than required, schools run the risk of compounding the invidious and divisive on-campus effects of this law. Rather than support discrimination with administrative services and amenities, law schools earnestly should employ every opportunity—including support services—to resist and denounce this and every manipulation of needy, deserving or vulnerable students as pawns for the imposition of any prejudice on legal education. Until this law is repealed, modified or invalidated, schools should use this legislative attack on the principles of nondiscrimination and equal opportunity in legal education to reaffirm and vindicate those very principles through imaginative and determined amelioration efforts.
While keeping complicity to a minimum and amelioration at a maximum, law school faculties, administrations and students also should cooperate proactively with the newly-established Section Task Force to implement the provisions of the Resolution calling for repeal of Solomon II, which was passed by an overwhelming vote of the AALS House of Representatives during the 1998 AALS Annual Meeting. This Resolution calls upon law schools, including deans and faculties, to unite behind a legislative effort to "eliminate" this divisive and destructive statute. All law schools should take this Resolution seriously, and contribute to the repeal effort that the Section Task Force is commencing in conjunction with the office of Representative Barney Frank and in collaboration with a similar Task Force recently established by the Society of American Law Teachers (SALT). If we unite and act collectively with timely determination, this academic year may be the last to be marred by Solomon II’s attack on the principle of nondiscrimination in legal education.
Appendix of Attachments*
Ten General Principles on Access and Amelioration, from the Original Section Report, September 15, 1998
AALS 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
AALS Memorandum 98-23, Amelioration, May 14, 1998
AALS House of Representative Resolution (Vermont Law School), Resolution Concerning Solomon Amendment, December 23, 1997
AALS Memorandum 98-37, Possible Legal Attack Against Department of Defense Regulations Adopted Pursuant to "Solomon Amendment", August 20, 1998 (with copy of ACLU litigation memo as attachment)
Department of Education Advisory General Memorandum 98-3, The Effect of the Solomon-Pombo Amendment on the Title IV Student Financial Assistance Programs, January 1998
Sample of Task Force Questionnaire on Law School Experiences
Sample of Task Force Information Packet for Letter-Writing Campaign
Justice Under Solomon: A Partial Listing of Resources
10. Recent Newspaper Accounts of Anti-Solomon II Activities
