January 18, 2002
|To:||Deans of Member and Fee-Paid Schools|
|From:||Carl C. Monk, Executive Director|
The September 11, 2001, terrorist attacks on our nation sparked resurgence in support for national defense and the preservation of our democracy. Not surprisingly, this patriotism is embraced by American citizens of all walks of life; many have responded by joining in the defense of our nation through service in the armed forces. We have seen men and women, persons of all colors and faiths, serving side by side in a common cause. We can all be proud to see these noble examples of our strength demonstrated through inclusion. And now, more than ever, our armed forces are in a position to demonstrate, through example, that discrimination does not strengthen, it divides; that inclusion does not weaken, it unifies. Sadly, however, American citizens who happen to be gay or lesbian remain subject to the military’s official policy of discrimination based on their sexual orientation.
Over the years, the Association of American Law Schools has taken a leadership role in pursuing equality of opportunity in legal education and in the legal profession for all persons, including gays and lesbians. The Association has sought to achieve this goal of equal opportunity, in part, by requiring member schools to (1) seek assurances from employers that they will observe the Association’s nondiscrimination policies and (2) withhold placement services from any employer who refuses to provide such assurances. Because of the conflict between the military’s discriminatory policies and the Association’s nondiscrimination policies, the military was for several years unable to utilize the services of member schools in recruiting students. However, in response to the Solomon-Pombo Amendment and its assessment of financial penalties against colleges and universities that bar military recruiters from use of placement facilities because of their discriminatory policies regarding gays and lesbians, the Executive Committee excused noncompliance with its nondiscrimination policies as they applied to military recruiters, as long as a school ameliorates the military's presence (1) by posting notice to the general law school community that military practices are inconsistent with the school's nondiscrimination policy under AALS Bylaw 6-4(b) and (2) by taking other steps to ensure a welcoming and inclusive environment for all students, including gays and lesbians. In the aftermath of 9-11, it is important to emphasize that the conflict between the policies of the AALS and the armed forces that resulted in this “amelioration” requirement was never a conflict between pro and anti-military views. It was and is a conflict about the destructive effects of discrimination, particularly when practiced by the government against some of its citizens.
The AALS has periodically sought to clarify the Executive Committee’s policy regarding amelioration and inform schools of the types of activities that have been undertaken by various law schools in an effort to meet the Executive Committee’s “amelioration” requirement. This memorandum will review the various factors and considerations the Executive Committee has examined in determining whether a school is undertaking sufficient ameliorative efforts.
1. In examining ameliorative efforts as part of the membership review process, the Executive Committee has carefully avoided requiring specific kinds of amelioration, recognizing that member schools need to carefully consider what kinds of ameliorative activities are appropriate in the context of the needs of their particular communities. However, the Executive Committee has required, as a starting point, that each school post notices, in a manner reasonably calculated to reach the entire law school community, alerting students and others that the military discriminates on a basis not permitted by the school’s nondiscrimination policy and the AALS bylaws.
2. The Executive Committee has also determined that posting notice, while necessary, is not, by itself, sufficient. The other types of activities that have, together with notice, been considered sufficient amelioration, have been quite varied, creative and inventive. The Executive Committee encourages schools to continue to experiment with new and different forms of amelioration directed at the common goal of helping to create an environment that is welcoming to all students, regardless of sexual orientation. However, with several years of experience in reviewing widely varying types of amelioration, the Executive Committee has identified several factors that it has found helpful in determining what sorts of activities are unlikely to be viewed as having a sufficient ameliorative effect on the law school environment:
3. The following ameliorative activities are some of the types of such activities adopted by member schools. They are given only as illustrations, and no law school is required to adopt any one or more of them. We hope you will continue to share with us other innovative ameliorative efforts that you have found effective. In reviewing your school’s efforts at amelioration, keep in mind that undertaking activities in one year to ameliorate the negative effect on the law school’s environment of the military’s discriminatory practices does not relieve the school of an obligation to continue to engage in ameliorative activities the next year. It is often the combination of different activities over an extended period of time that prove most effective in creating a welcoming and safe environment for gay and lesbian students.
Membership Review Committee
Chair, Section on Gay and Lesbian Legal Issues