Don't Ask, Don't Tell, Don't Fight

Even before the military started shelling, Washington University hoisted the white flag

In their official memos on the thorny subject, the chancellor and the law-school dean strike the same somber tone: It's a serious matter; we are all pained very much, but we cannot afford to lose the millions; even though we are morally offended, we must abide. Their memos drip with sadness.

But there's not a hint of anger in them.

This, of course, may explain why this whole affair has risen and been resolved so quietly. Few people outside the law school have heard a word about it.

The first memo was sent from Washington University Chancellor Mark Wrighton to law-school Dean Joel Seligman Nov. 7 after the two men talked about "the complications that have arisen surrounding the Department of Defense's adoption of an interim regulation."

Well, the relevant chronology begins in 1990, when the Wash. U. School of Law and all the other member schools of the American Association of Law Schools (AALS) required employers who want to recruit students on campus to sign a nondiscrimination policy, which covers sexual orientation. In 1993, that requirement ran smack into Uncle Sam's (and Uncle Bill's, for that matter) "don't ask, don't tell" policy, which essentially said you can be a homosexual in the military as long as no one knows you are one. The classic Clinton "compromise" basically legalized discrimination against gays and lesbians. Because the military, which wants to hire law grads for its judicial system -- the Judge Advocate General (JAG) Corps -- wouldn't sign the AALS policy, it was effectively kept from selling a military career through the schools' placement offices. In essence, the law schools said: Don't sign, don't sell.

In '95, the military fired back through Congress with the Solomon Amendment, which denied Department of Defense (DOD) money to law schools that kept military recruiters out. For most schools, the punishment wasn't painful, because they don't get much DOD money. So they kept the military out. In '97 came "Solomon II," which ratcheted up the punishment by denying other federal funds (including student aid) to schools that denied recruiters access. The 162-member AALS, with help from civil-rights groups, fought back and won the next congressional round last fall, getting the '97 provision repealed.

This year, the DOD skipped Congress and engaged in what the AALS calls "stealth rulemaking": It issued the aforementioned "interim regulation," which said that if you keep the recruiters out, you lose federal grants not just to the law school but to all other schools in the university.

For Wash. U., $300 million in federal grants is at stake.

Hence Chancellor Wrighton's memo. He wrote that he "believe(d) that the Department of Defense should not discriminate on the basis of sexual orientation." Nevertheless, he added, the new DOD rule "places at risk many university programs," including "programs of research supporting advances in patient care at the School of Medicine." Then came his "request" that the law school make an exception to its policy and allow the JAG recruiters the benefits of the Career Services Office.

"This action, I know, will cause pain among members of the gay and lesbian community," Wrighton wrote, "and this action is unsettling to me as well."

The very next day, Dean Seligman sent out a memo to the law school's 35 faculty members and 656 students, sounding a similar tone. He said the decision had been made "after discussion with Chancellor Mark Wrighton." He added that "for many of us, a policy of non-discrimination on the basis of sexual orientation reflects a fundamental moral value." Then he defended Wrighton's decision, weighing it against the "extraordinary impact" on the rest of the university. "It trivializes this impact to say that this is just about money," he wrote. "At issue potentially are careers, the education of students, residents, interns and fellows; patient care; and potential cures to devastating diseases."

A streak of defeatism runs through both the memos. But there is a question that neither man raises, much less answers: If this is a moral issue and if it is certain to cause a lot of pain, why not fight this damned "interim regulation?" Why roll over with barely a whimper and play dead?

It is anger that leads one to pick a fight. Judging from the memos, neither the chancellor nor the dean is an angry man.


Sylvia Law, a nationally known civil-rights advocate and a professor at New York University Law School, chuckles when told about the Wash. U. memos. "Yeah, we got one of those, too" she says.

Last month, NYU administrators gave up without a fight as well, although when the military's JAG recruiter arrived at the law school, she was faced with angry students wearing fluorescent-pink stickers reading "JAG OFF!" Many other students, all either "queers or queer-friendly," according to a student leader, signed up for interviews with the recruiter.

"It was a real zoo here," says Law.

Wash. U. and NYU aren't alone in their capitulation. None of the universities that stand to lose federal grants beyond their law schools has announced any plan to fight the regulation. There has been no talk of universities' -- Yale, Stanford, NYU, Wash. U. -- getting together and either challenging the legality of the military's regulation in the courts or pursuing this in the political arena as naked coercion on the military's part. Some law schools that are independent and not part of a university, such as Golden Gate Law School, are still keeping the military out, says Law. Some have acceded but are screwing around with the military -- American University, for instance, is restricting the recruiters to one day on campus and even denying them parking permits, she says.

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