Legal Jeopardy

Legal Jeopardy

The military needs more lawyers. More accurately, the Defense Department wants military recruiters to recruit law students on campus and through official channels.

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The military needs more lawyers. More accurately, the Defense Department wants military recruiters to recruit law students on campus and through official channels. With the nation preparing for war, the student veterans associations and ROTC offices, where such recruiting used to take place, aren’t good enough.

Many law schools have in the past declined to give official support to military recruiters, because the schools welcome only prospective employers that do not discriminate on any basis, and the military’s “don’t ask, don’t tell” policy excludes anyone who is openly gay. This year, the Defense Department is taking an aggressive approach, and because of a recent reinterpretation of legislation known as the Solomon Amendment, it’s getting its way. Under the amendment, federal funding may be withdrawn from any university whose law school is not in compliance with regulations enabling military recruitment. That means funding not just for the law school but universitywide–amounting to hundreds of millions of dollars.

At least ten schools, including Harvard, Yale and the University of Southern California, received letters from the Air Force or Army Judge Advocate General (JAG) corps informing them they were not in compliance with the requirements of the Solomon Amendment and that their university funding was in jeopardy. The JAG corps had occasionally notified schools of compliance problems before but had always concluded that alternative arrangements to accommodate recruiters were in compliance. Post-9/11, they’re less flexible. As Harvard law professor Janet Halley observes, “I don’t think it’s any accident that the DoD left the Solomon Amendment completely ignored until now. They saw they could exploit a weakness, and unfortunately they were right.”

Faced with this draconian choice, law schools are allowing recruiters on campus while expressing their opposition to them. Notices at USC informed students that the military violates the school’s nondiscrimination policy. Yale students held a rally attended by law school faculty and the dean. Students at Harvard, gay and straight, signed up for interview slots–not to interview, but to discuss “don’t ask, don’t tell.” Yale University is exploring bringing suit against the Defense Department; at Harvard students and professors are urging the administration to do likewise. USC law school associate dean Robert Saltzman says he applauds these efforts but points out that a school can’t undertake a challenge without a loss of funding, possibly permanent. “If Yale’s general counsel can figure a way out of that, we’d be very interested,” he says. “It’s essentially a power play, and the DoD has all the cards.”

Stanford law school is trying to have it both ways. Dean Kathleen Sullivan’s official statement explains: “Our students were able to interview with the JAG corps at the same time and in the same building as other recruiters…but under University rather than Law School auspices.” Stanford professor George Fisher, who favors litigation, points out that whatever justification the military may have for excluding gays on the battlefield, these hardly apply in the JAG corps law office context. “We should set an example for the students–fight for a stance we have taken when it seems that we are being forced to give it up without good reason,” he says.

Whether prospective suits materialize, reopening a national conversation about “don’t ask, don’t tell,” or whether, given the current climate, dissenting law schools will be condemned as unpatriotic, remains to be seen. Meanwhile, Maj. Sandy Troeber, who explains the military’s actions this year as part of a periodic review, insists that “equal access…is crucial to insuring we attract a diverse and highly qualified applicant population.” Given the campus protests and low numbers of interviewees at the schools in question, it’s debatable whether these tactics will achieve that aim. But it’s puzzling that the military is devoting time and effort now to this particular battle. Military policies already exclude talented applicants who are openly gay; this strong-arm approach may discourage some who are straight as well.

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