Little Talk of 'Don't Ask, Don't Tell'

The U.S. Supreme Court may have unanimously squelched a First Amendment challenge on the part of law schools to a 1994 law tying federal funding to campus access for military recruiters back in March. But it left one door open for opponents of the so-called Solomon Amendment: “Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds,” the court ruled in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR).

The Solomon Amendment threatens to withhold most federal funds for institutions that limit military recruiters’ access to campus and, in the eyes of many law school faculty and administrators, compels institutions to open their doors to an employer that -- because of the Pentagon's policy of discrimination against gay service members -- contradicts their own non-discrimination policies.

But, while the March decision delivered a clear defeat to the coalition of law schools raising this complaint, it also, as many legal educators pointed out, cleared the way for a projected rise in protests taking aim at the military’s discrimination against gay people through its “don’t ask, don’t tell” policy. The court's language freed “students, faculty and administrators to protest with abandon without fear of reprisal,” said James G. Leipold, executive director of the National Association for Law Placement.

But nine months after the decision, the number of “ameliorative” efforts on law school campuses designed to protest "don't ask, don't tell" and support gay and lesbian students has barely budged, Leipold said Wednesday during a panel discussion on responses to the Solomon case, held during the Association of American Law Schools’ annual meeting in Washington. A December survey of 190 U.S. law schools – to which 112 responded – found that “the number of schools initiating any significant new ameliorative practice since the FAIR decision is very low,” Leipold said. While activists on a handful of campuses seem energized, mostly the status quo reigns and, in some cases, resignation has displaced action, he said.

To cite a few examples, in regards to the most popular practice reported on the “Amelioration Best Practices Survey” -- circulating or posting a law school’s nondiscrimination policy when military recruiters come to campus -- 96 percent had the practice in place prior to the decision, 1 percent initiated it after Rumsfeld v. FAIR and one institution, Leipold said, reported to have reversed its former practice of posting its nondiscrimination policy on the doors of rooms assigned to military recruiters since the spring.

Among less commonly cited practices, 55 percent of law schools reported funding off-campus events or programming for gay, lesbian, bisexual and transgender students prior to the March decision, with 5 percent initiating the practice since then. Just 4 percent of law schools initiated student-led Solomon Amendment task forces after Rumsfeld v. FAIR, with 27 percent already having such task forces in place.

Law professors speaking at Wednesday’s panel, all of whom strongly oppose “don’t ask, don’t tell,” discussed new directions for action in the post- Rumsfeld v. FAIR era, emphasizing a sense of protest fatigue and the need to challenge the Pentagon policy in the legislative arena. “What we really need to do is not just protest. It’s to engage in the legislative process,” said Kathleen Clark, a professor at the Washington University in St. Louis School of Law.

Professors cited a changing political climate as evidence that the time is ripe – the Democrats are set to take over Congress today, and John M. Shalikashvili, a retired army general and former chairman of the Joint Chiefs of Staff, wrote an opinion piece that appeared in The New York Times Tuesday supporting a gradual removal of the ban. “This is a terrific time, there are great opportunities,” said Clark, who mentioned Vermont Law School’s plan to send a bus to a “Lobby Day” sponsored by the Servicemembers Legal Defense Network in March as an example of the kind of advocacy law school faculty should be supporting.

“Is it time to let go of Solomon and really focus on ‘don’t ask, don’t tell?’ ” asked Alan Minuskin, an associate clinical professor at Boston College Law School, adding that many of his students think the answer is, "yes." “We’ve been splitting our attention the past 10 years.”