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Bigotry and Blackmail
By Trung D. Tu
The beginning of the school year can be stressful in many different ways for all involved. First-year students are embarking on the advent of their legal career with uncertainty and trepidation about what law school will entail. The upper division students feel that they have law school all figured out, but are worried about legal employment, whether it be a clerking job for next summer or an associate job following graduation. Many of the upper division students are currently going through the process of on-campus interviews—more popularly known as OCI—seeking employment.
This year, OCI will be much different for our campus and many other law school campuses across the nation. The difference will be the presence of military recruiters. This year, the various branches of the military will be officially participating in OCI for the first time since 1990. To most law students, schools, and faculties across the country, this is an absolute atrocity. It is not an atrocity because the military will be recruiting, but rather because of the manner in which Congress and the Department of Defense have blackmailed and coerced its way onto law school campuses. It is an atrocity because law schools have no choice but to allow military recruiters to come on campus. It is an atrocity because our civil liberties and the few protections that homosexual law students had have been ripped away. This atrocity is made possible by the infamous Solomon Amendment.
Background on the Solomon Amendment:
In 1990, the American Association of Law Schools (AALS) declared that all of its ABA-accredited law schools must adopt a nondiscrimination policy, which includes, among other things, not discriminating on the basis of sexual orientation. As a part of that nondiscrimination policy, all employers who want to recruit on member law school campuses must adopt the same nondiscrimination policy. Our law school is a member of the AALS and our faculty adopted this nondiscrimination policy. The law school has not allowed employers who choose not to abide by this policy to recruit on our campus.
The US Department of Defense (DOD) does not practice a policy of equal opportunity. In fact, they are legally allowed to discriminate against homosexuals. Because the military refuses to adhere to our nondiscrimination policy, it has not been allowed to officially recruit on our campus. In the past, the military has unofficially recruited on our campus through the invitation of student groups on campus. This practice did not violate the school’s nondiscrimination policy.
In the fall of 1996, in order to combat AALS’s and its member law schools’ nondiscrimination policy, Congressman Solomon (NY Rep.) and Congressman Pombo (CA Rep.) tacked the infamous Solomon Amendment onto the Omnibus Funding Bill of 1997. The Amendment passed the House and Senate and was signed into law by President Clinton. The Solomon Amendment is nothing more than a congressional threat to all law schools across the nation to force law schools to allow the military to recruit on law school campuses or else lose their Perkins Loan and work study monies. Stafford Loans and Pell Grants are not affected.
Here’s how the Solomon Amendment works: First, the Judge Advocate General (JAG) Corps sends a letter to all law schools that do not allow recruitment on their campuses. The JAG Corps’s letter essentially says that the law school appears to be out of compliance with the Solomon Amendment and that the law school has 30 days to clarify its position. If the law school doesn’t capitulate to the military, the JAG Corps sends the information to the DOD. If the DOD finds that the law school is out of compliance, it sends the school’s file to the Department of Education (DOE) and the DOE takes action. The DOE gives the school an ultimatum: either change its position and allow the military to recruit or lose federal funding. Under the ominous shadow of the Solomon Amendment, the AALS has allowed law schools to make exceptions to their nondiscrimination policy for military recruiters.
What Transpired on Campus during the 1997-98 School Year:
In fall 1997, the law school faculty voted to make an exception to our nondiscrimination policy in order to allow the military to come recruit. Only Professor Kanter voted against the exception. Other than the input of the two student representatives to the faculty committee, this decision was made without discussing the matter with the student body.
On March 25, 1998, Dean Huffman received a “clarification letter” from the Department of the Air Force demanding that the law school clarify its policy regarding military recruitment on the law school campus. The letter stated that the “military recruiting representatives were not allowed to recruit on the law school campus during fall 1997 by a policy or practice of the [law school].” Furthermore, they were providing the law school “an opportunity to clarify [the law school’s] policy regarding recruiting on campus . . .” This clarification letter was essentially a government threat telling us to change our nondiscrimination policy and allow the military to recruit at the law school, or else lose federal funding.
After receipt of the Air Force’s letter, members of Gays, Lesbians or Bisexuals at Law (GLOBAL), American Civil Liberties Union (ACLU) Student Group, and many other students at the law school lobbied the law school to make a principled stand and not give in to the Solomon Amendment and the DOD’s demands. However, the faculty stuck with its original decision. Though the faculty believes in the law school’s nondiscrimination policy, they fear the ramifications of not obeying the Solomon Amendment—which would mean a loss of $155,000 in work study monies. The loss of work study money would also mean the loss of work study jobs, a loss the faculty felt was too great a risk for the law school to bear.
Faculty Action Since:
In response to the receipt of the “clarification” letter, the Solomon Amendment Faculty Subcommittee was formed to work with Career Services, the Student Bar Association (SBA), GLOBAL, National Lawyer’s Guild (NLG) and ACLU student groups regarding military recruitment on campus. The purposes of the subcommittee are to discuss issues related to military recruitment, such as ameliorative measures, changing the law school’s nondiscrimination policy, and educational programs. Faculty members of this subcommittee are Professors Funk, Mandiberg, and Wright.
The subcommittee drafted the following Revised Nondiscrimination Policy, which will be presented to the full faculty for its vote:
Northwestern School of Law of Lewis and Clark College provides placement services to all students and graduates, on an equal opportunity basis. We do not knowingly furnish assistance and facilities for interviewing and other placement functions to persons, firms, agencies, or organizations that discriminate in their selection of candidates or employment on the basis of race, color, religion, national origin, sex, age, handicap or disability, sexual orientation, marital, parental, or veteran status, or the prejudice of clients.
Northwestern School of Law of Lewis and Clark College notifies employers of our nondiscrimination policy and informs them that a request to use any of our placement services in any manner is, by that request, their acknowledgment that they are willing to adhere to our nondiscrimination policy. Northwestern School of Law of Lewis and Clark College expects that all employers will consider, in good faith, each applicant on the basis of his or her individual merits.
The United States Armed Forces historically have discriminated against persons on the basis of their sexual orientation. While those policies have been in flux in recent years as a result of executive and judicial action, the Armed Forces continue to discriminate on the basis of sexual orientation in a manner inconsistent with the Law School’s Non-Discrimination Policy. Consequently, the Law School has not allowed Armed Forces recruiters (Army, Navy, Air Force, and Marines) to recruit on campus or to receive assistance from Career Services. Recently, however, Congress amended federal law to withdraw federal financial support (including certain types of student financial aid) to institutions of higher education that do not allow military recruiters access to campus or to certain student information. Department of Defense regulations implementing these provisions make clear that, if the Law School continues its policy of denying military recruiters access to campus and to certain student information, students at the Law School will lose certain financial aid.
In response to this threat, and for no other reason, Northwestern School of Law of Lewis and Clark College concedes an exception to its non-discrimination policy to military recruiters, to be in effect only while federal regulations continue to threaten elimination of financial aid in response to enforcement of non-discrimination. Northwestern School of Law of Lewis and Clark College abhors in the strongest terms the policy of the Department of Defense and the United States Congress and regrets the need to succumb to their threats. The Law School supports efforts to change both this law and the military policy discriminating on the basis of sexual orientation.
In conjunction with the above Revised Nondiscrimination Policy, the subcommittee drafted the following to add to all military job postings and literature:
The United States Armed Forces have a policy of discrimination in employment with respect to sexual orientation. Northwestern School of Law of Lewis and Clark College opposes this policy, which is contrary to the law school’s own policies as to equal opportunity. However, the law school is required by federal law to provide access to military recruiters if all divisions of Lewis and Clark College are to retain federal financial aid to students. The presence of US Armed Forces recruiters on the law school campus is solely a result of threats to eliminate federal financial aid to students, and the law school deplores the need to succumb to these threats.
What Students Can Do to Protest the Military’s Presence on Campus
As of this writing, the US Army JAG Corps recruiters will be on campus conducting OCI on Thursday, October 8, 1998. The GLOBAL, ACLU and NLG student groups are in the process of organizing a protest and media event for October 8. Even though the law school faculty as a whole cannot officially support an organized student protest of military recruiters, many of the faculty members plan to participate in the protest and will support the students in an unofficial capacity. All interested in assisting with the military protest should come to the organizational meeting on Wednesday, September 16, at noon in room 6.
In conjunction with the protest, students who support homosexual rights and oppose the military’s presence are encouraged to submit their applications to the Army JAG Corps in order to take up interview slots. We do not want to prevent anyone from working for the military if students choose to do so. These students are free to call on the recruiters’ offices themselves. However, we cannot allow the military to force its way onto our campus and require us to change our policies without putting up a fight.
We hope that the entire student body of the law school will support its fellow homosexual students in their fight for equality and dignity. Our numbers are small at the law school. However, that does not mean that our self worth and rights should be diminished in any way. We are not asking for special rights. We are asking only for the same rights as other law students. We merely wish to be considered for employment based on our merit, not our sexual orientation, which is entirely irrelevant to our ability to perform our jobs. Our sexual orientation is our business alone, not any employer’s.
As law students debate the military recruitment and the student protest of the military’s presence, they should keep in mind what Pastor Martin Niemöller said in the late 1930’s: “In Germany, they came for the communists, and I didn’t speak up because I wasn’t a communist. Then, they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then, they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then, they came for the Catholics, and I didn’t speak up because I was a Protestant. Then, they came for me, and by that time there was no one left to speak up.”
Trung D. Tu is a staff writer for Letter of the Law, secretary/treasurer of GLOBAL, co-president of the ACLU student group, associate editor of International Legal Perspectives, public relations officer of MLSA, member of PILP, member of Phi Delta Phi Legal Fraternity, and a lover of good food. This article does not necessarily represent the opinions or views of the groups in which Trung participates. Questions, comments, or suggestions are welcome and should be directed to Trung via email at ttu@lclark.edu.