MEMORANDUM 00-2

January 24, 2000

As you probably know, the federal government, under the "Solomon Amendment" prohibits universities and law schools from receiving certain funding if the university or law school fails to permit the military to interview students on campus. The most onerous provision of the Amendment, which applied to student aid funds going directly to the university or law school, has been repealed. Prior to the repeal the AALS Executive Committee had permitted schools to allow the military to interview on campus so that student aid funding for their students would not be jeopardized.

The repeal of the student aid portion of the Amendment enables law schools to deny access to the military for recruiting purposes without jeopardizing any student aid funds. The Solomon Amendment remains applicable to other grants from the Departments of Defense, Labor, Health and Human Services, Education, and "Related Agencies". (See attached list.) Based on a recent survey of law schools, it appears that less than five schools receive funding that might be affected by the agencies whose grants are still covered by the Solomon Amendment.

After consideration of these recent developments, the Executive Committee decided, at its January meeting, to return to its prior policy of requiring schools to deny the military access except in those limited situations when some "higher authority" (See attached excerpt from Deans Memo 96-15, dated May 28, 1996.) requires the law school to grant such access. The Executive Committee will of course expect schools in this position to comply fully with all other AALS non-discrimination policies.

It should be noted that a law school's policy does not in any way affect funding for the university as a whole, or other individual units of the university.

Please contact AALS Deputy Director H.G. Prince if you have any questions regarding this policy.

Attachments:

Armed Forces Retirement Home
Corporation for National Community Service
Corporation for Public Broadcasting
Federal Mediation and Conciliation Service
Federal Mine Safety and Health Review Commission
National Commission on Libraries and Information Sciences
National Council on Disability
National Education Goals Panel
National Labor Relations Board
National Mediation Board
Occupational Safety and Health Review Commission
Physician Payment Review Commission
Prospective Payment Assessment Commission
Social Security Administration
Railroad Retirement Board
United States Institute of Peace

Excerpt from Deans Memo 96-15, dated May 28, 1996

III. Specific Issues Posed by Military Recruiters

B. Member schools have requested guidance concerning their obligations in the face of a higher authority (state law or university policy) that mandates that they provide access by military recruiters to law school facilities. Unlike any other employer, the military is required by federal law to discriminate on the basis of sexual orientation, and for this reason state law or university policy sometimes direct law schools not to implement the AALS non-discrimination rules as to the military. Pending resolution of the constitutionality of the military's discrimination, the AALS will excuse a law school's noncompliance with Bylaw 6-4(b) and ECR 6.19, with respect to military recruiters, under the following circumstances:

1. State law may in some cases affect member schools' obligations under Association bylaws and regulations, but careful scrutiny of relevant law is required before reaching any conclusion on this point. Schools faced with provisions of state law that raise such questions should first endeavor to secure an interpretation of the governing language, and should, if possible within the terms of the relevant statute, endeavor to comply to the extent possible with Association regulations.

2. Policies promulgated by the Board of Regents, Board of Trustees, or other highest governing body of a university (or independent law school) may also affect law schools' obligations. In such cases, member schools are expected to propose and urge that such policies be interpreted to allow the law school to comply with Association policy with regard to recruitment on law school premises, notwithstanding the possible application of university policy to allow military recruiters to conduct interviews at other locations within the university (such as the campus placement office or ROTC facility).

3. Where state law or university policy requires the law school to provide assistance to military recruiters, the school should, to the extent possible, disassociate itself from the military's discrimination and should take steps to ameliorate any adverse effects of non-compliance with regard to the educational atmosphere for gay and lesbian students. In this situation, it is especially important that the law school maintain an inclusive and supportive atmosphere for all students regardless of sexual orientation and that it take steps to educate students on the importance of nondiscrimination, as by hosting forums and events that illustrate the importance of the principle. Other appropriate ameliorative steps include prominently displaying the school's generally applicable non-discrimination policy (even though it may not be enforceable as to military recruiters) and accompanying any circulation of military recruitment materials within the law school with a declaration of the inconsistency between military employment practice and the law school's non-discrimination policy. The school should also limit the level of service provided on law school premises as much as possible; for example, a law school may provide scheduling services to the military and arrange that the interviews take place at another location. The active involvement of a gay and lesbian students organization and the acceptance of openly gay and lesbian faculty and staff are also important factors in establishing a general climate of nondiscrimination.

4. If the Department of Defense, as a condition of paying the tuition of military personnel attending the law school, requires that military be permitted to recruit at the university, the law school may seek to arrange for the military to recruit at another location on campus. Given the hardship to students if they were required to forego tuition or to withdraw from the school, the Association will deem this "assistance" provided to the military as minimal. If, on the other hand, the law school is required to permit military recruitment at the law school, the school must obtain from the institution's or the campus chief executive officer authorization not to comply with the Association's policy.

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