The AALS Adds Sexual Orientation to Its Nondiscrimination Policy
In 1990, the House of Representatives of the American Association of Law Schools unanimously voted to amend AALS Bylaw 6-4, adding sexual orientation to its nondiscrimination policy. Bylaw 6-4 had already prohibited discrimination by law schools on the basis of race, nationality, religion, and gender. To enforce this Bylaw, the AALS Executive Committee subsequently enacted Regulation 6.19, which requires employers who recruit at law schools to provide written assurance that they do not discriminate on any of the grounds prohibited by Bylaw 6-4.
The Military's Inability to Fulfill the AALS Nondiscrimination Requirements
For much of the past century, the United States Armed Forces imposed, with varying degrees of vigilance, an administrative ban on homosexual servicemembers. In 1993, following initial efforts by President William Clinton to allow gay people to serve openly in the armed forces, the military (with President Clinton's endorsement) adopted the "Don't Ask, Don't Tell, Don't Pursue" policy. This policy, unlike its predecessor, allows gay people to serve in the military as long as they are silent about the fact that they are gay. Because the policy of the Armed Services permits gay individuals to serve only if they refrain from being honest about their sexual orientation (a requirement not imposed on heterosexuals), and because the policy operates in practice as an outright ban on the service of gay individuals (given the difficulty in keeping secret a central part of one's life), the Armed Forces could not confirm its compliance with the AALS nondiscrimination requirements as called for by Regulation 6.19.
The AALS Bars Military Recruiters; Retribution in the Form of the Solomon Amendments
The AALS insisted that the military, like other discriminatory employers, be barred from recruiting on law school campuses. (See Statement by AALS Executive Director Carl Monk, 'Military Recruiting at Law School Career Services Offices,' 13 August 1997.) The refusal of most law schools to welcome recruiters from the Armed Forces provoked a legislative backlash. In 1995, Congress passed the first Solomon Amendment, denying schools that barred military recruiters from campus any funds from the Department of Defense. The next year, Congress extended the law's reach to include funds from the Departments of Education, Labor, and Health and Human Services. This second Solomon legislation put law schools at risk of losing federal financial aid monies that are critical to many students. The new law forced schools to choose between protecting students who are on financial aid from economic and educational hardship and protecting students who are gay or lesbian from discrimination.
The AALS Response to the Solomon Amendments – A Military Exception and an Amelioration Requirement
In response to the dishonorable but potent threat posed by the Solomon Amendment, AALS amended its nondiscrimination policy in 1997 to excuse noncompliance with AALS Bylaw 6-4 to the extent the law imposed severe punishment for barring military recruitment. This excusal was contingent upon a law school's satisfactory completion, each year, of a "duty to ameliorate" the effects of the military discrimination they now unwillingly hosted. Specifically, the AALS Executive Committee asked schools to publicly express their disapproval of the discrimination against gay men, lesbians and bisexuals, and to take affirmative measures to provide a safe and protective atmosphere for sexual minority students. (See 'Amelioration,' Memo from AALS Deputy Director Bari Burke to Deans of Member and Fee-Paid Law Schools, 14 May 1998.)
Reinstatement of Full Nondiscrimination Policy Upon Protection of Student Financial Aid Fund
In 1999, a repeal campaign in Congress was successful in removing student financial aid from the reach of the Solomon Amendments. The AALS response to this change was swift and decisive. Speaking for the Executive Committee, AALS Executive Director Carl Monk notified law school deans in 2000 that the removal "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." A return to compliance with the entirety of Bylaw 6-4 was announced by AALS and was in turn enacted by law schools nationwide. (See Executive Committee Position Regarding 'Solomon Amendment, Memo to Deans of Member Schools, 24 January 2000.)
New Interpretation of Solomon from Department of Defense Endangers University-Wide Funding
In 2000, the Department of Defense issued a new interpretation of the Solomon Amendment whereby an entire university (and not just a law school associated with the university) would experience a loss of federal funds were military recruiters not provided full and equal access to law students. This deprivation, if enforced, would have resulted in severe financial losses to hundreds of universities, losses that would in turn have caused genuine damage to students, faculty, and scholarship generally. Harvard Law School, one of the first institutions notified by the Department of Defense of the law school's possible non-compliance with the Solomon Amendment, estimated that Harvard University stood to lose $328 million under the Defense Department's new interpretation of the law. The impact of the new agency interpretation of the Solomon Amendment would have been equally serious (albeit at lower absolute numbers in most cases) at numerous American universities.
Response of the AALS to Defense Department Regulations; The Status Quo
Because of the coercive effect of the Defense Department's new understanding of the Solomon Amendment's reach, the AALS was again forced to amend its nondiscrimination policy to provide an excusal of military recruitment in exchange for ameliorative efforts on the part of law schools. (See 'Executive Committee Policy Regarding "Solomon Amendment," Memo from AALS Executive Director Carl Monk to Deans of Member Schools," 24 January 2000.)
The AALS continues to stand opposed to the Solomon Amendment. In January 2004, it submitted an amicus brief to the Third Circuit Court of Appeals on behalf of plaintiffs in FAIR et al. v. Rumsfeld, explaining how the Solomon Amendment unconstitutionally infringes upon law schools’ right of expressive association. Similarly, AALS submitted an amicus brief to the United States Supreme Court in support of FAIR in September 2005.
