“Don’t Ask, Don’t Tell” is at the center of an ongoing controversy at the Stanford Law School. In 1993, President Clinton signed an Executive Order that initiated the Don’t Ask, Don’t Tell policy (DADT). The measure allows homosexuals and bisexuals to serve in the military with the guarantee that superiors will not ask about or investigate into one’s sexuality so long as the individual does not disclose his or her sexuality. Stanford Law believes DADT is discriminatory.
In early January, law students opened their email inboxes and found a lengthy message signed by most of the Law School’s professors. The faculty members sent the message in response to the Office of Career Services to offering students an opportunity to interview on campus with Judge Advocate General’s Corps, or JAG, the military’s legal branch. Each term, the faculty or Dean Kramer sends out a similar message.
Because DADT would prevent an openly gay student from serving with JAG, the faculty says that “hiring restriction flatly violates the law school’s nondiscrimination policy.”
Stanford Law’s nondiscrimination policy reads, “Stanford Law School makes its facilities and services open only to employers who do not discriminate on the basis of age, religion, disability, ethnic background, national origin, gender, race, sexual orientation, or veteran status, or any other characteristic protected by applicable law.”
The Law School has worked to prevent military recruiters from gaining access to students for recruiting here on campus. Indeed, the faculty’s e-mail states, “For decades, therefore, the law school has refused to host or assist military recruiters on campus. Our refusal has expressed our pledge that within these walls, we will make no distinction among you in extending any benefit or service except according to merit or need.”
This statement does bring into question whether Stanford is currently abiding by federal law under the Solomon Amendment. In the email, the faculty recounts the following story regarding the Amendment: The 1994 congressional Solomon Amendment sought to pull non-financial aid funding from individual schools that barred military recruiters, and after 1997, the federal government did revoke Stanford Law School’s funding. In 2000, the Department of Defense changed its regulations to extend the threat of federal funding revocation to all of Stanford University. Unwilling to financially burden the entire University, the faculty maintains, the Law School sought to sue the Department of Defense.
When in 2000, the University refused to file suit on behalf of the Law School, various law schools and professors formed FAIR, the Forum for Academic and Institutional Rights. In the 2006 decision* Rumsfeld v. Forum for Academic and Institutional Rights, Inc.*, the Supreme Court declared the Solomon Amendment constitutional, thereby overturning a lower-court ruling.
The amendment states that the Department of Defense may revoke federal funding “if the Secretary of Defense determines that that institution (or any sub-element of that institution) has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents” the military “from gaining entry to campuses, or access to students (who are 17 years of age or older) on campuses” or students’ basic information for “purposes of military recruiting.”
Using Social Pressure to Effectively Prevent Access?
The faculty’s email was written in a way that does not forbid students from meeting with JAG recruiters. According to the Law School’s recruiting policy, “no step we take will forbid military recruitment of our students. Stanford Law School students have been and remain free to interview with the JAG Corps both on and off the Stanford campus.”
Indeed, in late January, JAG recruiters conducted informational interviews here on campus. One of the few students who appeared on the list of interviewees was David Starr Rabb ’08 J.D. ’11. Rabb says, “The faculty puts a lot of social pressure on the students to not apply for JAG.” As a member of the Navy Reserves, Rabb already saw the possibility of a career with JAG before signing up for the interview. Rabb was shocked to find that ahead of the JAG recruiters’ visit, his name had been posted publicly by the Office of Career Services right beside anti-DADT posters and the Non-Discrimination policy. At the bottom of the interviewee list, there was a note identifying JAG as a known discriminating employer.
Rabb was willing meet with the JAG recruiters, but for those students who may not have given much consideration to a career with JAG, reading the email signed by most of the Law School professors, seeing the anti-DADT posters beside prominent Non-Discrimination policies, and facing the possibility of significant social backlash may serve as enough of a deterrence against meeting with JAG recruiters.
Regarding institutional help students receive during the job search process Rabb said, “The Law School is very helpful at helping students find jobs with private firms or other public interest jobs. But when it comes to military jobs, it’s just harder [for students] to find that information.”
Above everything, Stanford Law is sure to emphasize that its objection to DADT is not an objection to the military. In their email, the faculty members ask students who are interested in careers with JAG to schedule interviews with recruiters directly and meet off-campus.
This, they argue, “will declare your support for the law school’s nondiscrimination policy and your respect for those of your colleagues whose expression of sexual orientation disqualifies them for military service.” They continue, “JAG Corps service is noble work. We are enormously proud of those graduates who go on to serve in the military. But we regard nondiscrimination as a fundamental educational principle.”
When asked whether the faculty’s email discriminated against those students potentially seeking careers with JAG, Judith Romero, speaking for the Law School, said, “Opposition to the congressionally mandated ‘Don’t Ask, Don’t Tell’ policy is not the same as, and does not signify, opposition to the military. Quite the contrary. Stanford Law School is proud to count military officers and veterans among our students and alumni.”