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help from civil-rights groups, fought back and won the next congressional round last fall, getting the '97 provision repealed.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.

The AALS, along with other higher-ed groups, has sent the DOD its objections to the new regulation, detailing why the group believes the regulation is illegal. It also asks that the rule be withdrawn. The memo was sent March 13, and the military has shown no interest in backing off from its threats.

At Wash. U., the issue has been discussed extensively among faculty, staff and students. A lot of hand-wringing and agonizing has gone on. But, again, there hasn't been much anger. Even Outlaw, a group of gay and lesbian law students, which opposes caving in to the military, seems to be engaged in a battle over technicalities. The group sent a memo to faculty, reading more like a legal brief than a letter of protest, that makes arguments for why the DOD rule violates the federal Administrative Procedures Act (APA). Perhaps if the JAG recruiter actually showed up on campus, Outlaw might live up to its name.

Law, who has been invited to meet with the Wash. U. law-school faculty and students in January regarding this matter, says universities would have a pretty strong court case, because the DOD rule violates the APA, which requires public hearings and input before such rules are issued, and because the rule essentially goes far beyond what Congress intended with the Solomon Amendment and Solomon II.

Would Wash. U. run the risk of losing federal money by challenging the law in court? "I think there is no risk to any university in being the lead plaintiff in a lawsuit, because the day you file the suit, you go in and get a preliminary injunction telling the military they can't retaliate against you by withdrawing funds until the suit's been tried -- zero risk of taking affirmative legal action, because the lawsuit can protect you," Law says.

Beyond the "procedural" issue, she says, "I think it's a profound academic-freedom issue, but it would not be recognized as such in a court of law, because they would just say, "You don't have to take the money. The courts have been extremely reluctant to see violation when it is conditioned on the availability of funds."

As for why the military is hell-bent on using campus placement offices when it has always been able to contact students and invite them to apply and be interviewed at campus ROTC offices, Law says she thinks some individuals at the Pentagon and in the Senate "see this as symbolically big and see this as wrong for the pointy-headed liberal academics to take government money and then impose their own view of cultural morality on the military. That's all."

A Wash. U. spokeswoman says the military JAG Corps has generally been recruiting five or fewer students each year from a class of about 200. Martha Rudd, an Army spokeswoman, says not only that the military does not believe it is infringing on academic freedom but that it believes the universities have been denying law students' rights -- to the choice of a career in the military.


Matt Coles, of New York, is not happy about the universities' giving up without a fight. Coles, the director of the American Civil Liberties Union's lesbian- and gay-rights project, says the military rule can be challenged legally because of the APA violation, "but they can fix that," meaning the military can simply go through the motions of a public-comment period and reissue the rule.

Like Law, Coles thinks that taking the issue of coercion to court would probably fail because, theoretically, the universities can live without the federal money. Courts have long maintained that government can withhold funds to state, local or private entities if they don't comply with federal rules. In the 1970s, the feds told the states they needed to comply with energy policy and institute a 55 mph speed limit and that if they didn't, they would lose billions in highway funds. "Can the government use its pocketbook to bully state, local and even private authorities this way? I think the answer under existing law is "Yes, it can,'" says Coles. "What they can't do is effectively give you what appears to be a choice that is no choice at all. If the alternative of turning down the money isn't realistic, then that would cross the line -- it amounts to coercion.

"But for a university to say, "Gee, we're usedto taking a lot of money from the federal government,' I don't think it amounts to coercion.

"I do think, however, what the federal government has done here is, it has said that schools have to accept not only recruiters but ROTC programs," continues Coles. "And that means that they have to accredit certain members of the U.S. military as faculty and put certain courses into their curriculum. And the recruiting program as well, which tells schools how they can run their placement offices -- I think those raise serious questions of academic freedom under the First Amendment."

These issues also raise serious questions about universities and their relationship with the DOD. When you accept $300 million a year from the feds, what else do you keep quiet about? What other troubling questions never get asked?

Coles says fighting the DOD, legally or in the public arena, poses little or no risk for universities.

"If you lose, you comply. What's the problem?" he asks. "Or, if you lose a political challenge, if you try and get them to change it and you don't succeed, then you comply. Why do people give up without a fight?"

At Wash. U., the law-school faculty voted unanimously on Nov. 8 to ask the university's general counsel to explore the issue of litigation. It's unclear whether Chancellor Wrighton supports the move or whether he will quietly quash that effort as well.

Nothing so far suggests that Wrighton feels any sense of outrage. He says through a university spokeswoman that he won't comment beyond what he wrote in his memo to Seligman. Well, that's where he said he found the whole thing "unsettling." That's the equivalent of a whisper, not a scream.

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