By: Patrick J. Smith
The on-campus interviewing and recruiting season can be one of
the most difficult components of the already trying task of
preparing to become a lawyer. Adding to the tension inherent
in this process is a recent controversy between legal recruiters
for the armed services and law schools that feel the military, as
an employer, violates the non-discrimination policies adopted by
the Association of American Law School (AALS).
It is in the recruiting context that the U.S. military and the
AALS, as well as some of its member institutions, have run squarely
into one another. Because the military continues to operate
with the “Don’t Ask, Don’t Tell” policy regarding service by
homosexual military personnel, the AALS considers the military, in
its capacity as a potential employer, to be in contravention of the
Association’s non-discrimination directive. After the
adoption of sexual orientation as a protected category, law schools
were required to ban military recruiting on-campus. That is,
until Congress answered back with passage of the Solomon
Amendment. Though it has taken on different forms, the Solomon
Amendment requires colleges and universities, including the law
schools within them, to permit military recruiting on-campus as a
condition of receiving certain kinds of federal
funding. Rather than force member institutions to risk losing
their own funding or jeopardize the funding of their parent
university, the AALS has permitted law schools to allow JAG
recruiting, even though such is still considered a violation of the
non-discrimination policy.
Part I of this note will discuss the history and directives of
the Solomon Amendment. Part II will briefly outline the U.S.
military’s “Don’t Ask, Don’t Tell” policy regarding homosexuals in
the armed forces. Part III will explore the claims raised by
the plaintiffs in cases challenging the constitutionality of the
Solomon Amendment. Finally, Part IV will explain why, for
better or worse, the concerns of those who oppose the Solomon
Amendment must yield to the powers of Congress.