MEMORANDUM 97-46

August 13, 1997

Nearly all employers asking to use law school services in recruitment now agree to certify that they do not discriminate on any of the bases enumerated in the bylaw. The troubling exception stems from the federal law that mandates the military to discriminate on the basis of sexual orientation. Accordingly, the difficult issues that our rules have presented involve our ban against military recruiters at member schools.

The United States Congress has sought to penalize the refusal of law schools and many other educational institutions to permit military recruiters to use their placement facilities. It has passed two statutes, the most recent one of which would bar a school that did not permit the military to recruit from receiving federal funds from various agencies, some of which provide money to law schools.

Because the Executive Committee concluded that some schools would find it extremely difficult to forgo these funds, it has decided to excuse non-compliance with Executive Committee Regulation 6.19 only for military recruiters, as long as a school provides "amelioration" in a form that both expresses publicly the law school's disapproval of the discrimination against gays and lesbians by the military and provides a safe and protective atmosphere for gay and lesbian students.

Under the terms of these statutes, known popularly as the Solomon Amendments, a law school that refuses to permit access to military recruiters will lose funds they receive not only from the Department of Defense but also from the Departments of Education, Labor, Health and Human Services and other "related agencies." These funds include some financial aid for law students.

The Department of Education has not yet issued its regulations pursuant to the statute, but I have been advised by the Department's General Counsel's office that it has determined that Pell Grants and other grants made directly to students will not be affected by this legislation. On the other hand, it has determined that grants for students that are made through the school, such as Perkins Loan Funds and Work-Study funds, are covered by the legislation. Thus, law schools that do not permit the military to use their placement facilities risk losing Perkins funds and Work Study moneys that are critical to many of their students. They also risk losing research and other grants that their faculty obtain through these departments and agencies.

The potential financial consequences to American law students of the expanded Solomon Amendment are ominous. Last year, 140 law schools reported to the American Bar Association that their students received Work-Study funding, in an average amount per school of $82,810. In addition, 133 law schools received Perkins Loan funds. Although it is not clear how much Perkins funding is at risk at each law school, it is clear that nearly 90 percent of American law schools stand to lose either Work-Study or Perkins Loan funds or both. The AALS has as yet been unable to determine how soon schools that refuse to permit the military to use their facilities are in jeopardy of losing funds or exactly what notice and process schools will receive before funds are terminated. The General Counsel's office in the Department of Education is still working on these issues and intends to issue regulations soon. We will, of course, advise schools as soon as we know more about the process and the timing.

The Executive Committee has considered at length the implications of the Solomon Amendment and the Department of Education's determination that the Amendment includes Perkins Loan and Work-Study funds. The Committee recognizes that the Amendment, as construed, places most law schools in the difficult position of either foregoing financial aid funds that are critical to their students or receiving the financial aid funds but failing to provide an environment that adequately protects its students from the experience of discrimination. The Committee believes that each school must be permitted to decide for itself how to resolve this conflict without being held in impermissible violation of the bylaws. Thus, so long as the Solomon Amendment remains in effect in its current form, each member school will be free to choose whether to continue to comply with the bylaw requirements as it applies to the military. Schools that choose not to comply will have their noncompliance excused so long as they engage in appropriate activities to ameliorate the negative effects that granting access to the military has on the quality of the learning environment for its students, particularly its gay and lesbian students.

Before making a decision to permit the military to interview, we urge each school to examine the actual extent of financial aid and other funds that it is at risk of losing, to explore ways of avoiding the loss of funds through turning to alternative sources, and to consider the range of ways that it might adopt to ameliorate the negative effects of granting access, if access were to be granted.

For purposes of compliance with the bylaws, schools that choose to permit access to the military may demonstrate adequate "amelioration" by a number of different actions. As a starting point, each school should assure that all its students, as well as others in the law school community, are informed each year that the military discriminates on a basis not permitted by the school's nondiscrimination rules and the AALS bylaws and that the military is being permitted to interview only because of the loss of funds that would otherwise be imposed under the Solomon Amendment (or, in appropriate cases, because of higher university directives that compel the law school to permit access). Other ameliorative acts that schools might consider include forums or panels for the discussion of the military policy or for the discussion of discrimination based on sexual orientation. Although no specific type of amelioration is required, the Executive Committee will examine the actions schools take in the context of the totality of the school's efforts to support an hospitable environment for its students. In assessing that environment, the Association will consider, among other things, the presence of an active lesbian and gay student organization and the presence of openly lesbian and gay faculty and staff. We would be grateful if schools would advise us of effective amelioration strategies in which they have engaged so that we can periodically share those strategies with other member schools.

As part of its own efforts to enable schools to provide hospitable environments for their students, the AALS has decided to seek permission from the court to file an amicus brief in the case of Able v. United States, in which Judge Eugene Nickerson of the Eastern District of New York has recently held that the military's "don't ask, don't tell" policy denies lesbians and gay men the equal protection of the laws. The United States has announced that it will appeal this ruling to the Court of Appeals for the Second Circuit. The AALS interest in the case stems from the fact that the military policy, coupled with the Solomon Amendment, directly affects member schools' capacities to assure a nondiscriminatory environment for their students.

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