Is Stanford violating the Solomon Amendment? Part Two

On Friday, I suggested that Stanford Law School may be violating the Solomon Amendment by discouraging its students from attending on-campus interviews with military recruiters. My post was based on reports from Stanford law students. They told me that when a student signs up for an interview with the JAG Corps, the career services office proceeds to “gauge” that student’s interest. As part of this process, the student is sent a letter in which most of the law school’s faculty members try to persuade him or her not interview with the JAG Corps on campus. If, as a result of this process, career services concludes that the number of sufficiently interested students is too low, the military recruiter is not allowed on campus.
Stanford’s policy strikes me as problematic. Although the career services office apparently gauges student interest in certain other potential employers (new employers or ones that don’t have an established recruiting history on campus), the faculty does not try to persuade students to disavow interest in other employers. In addition, the process is subject to abuse if interest is gauged subjectively, particularly given the faculty’s strong preference that the JAG Corps not be allowed on campus.
I have obtained a copy of the faculty letter. It states:

You just received a message from Renee Ritucci in Career Services seeking to gauge student interest in employers that would like to recruit on campus this fall. One of these employers is the U.S. Navy JAG Corps, which officially discriminates against applicants who say they are lesbian, gay, or bisexual or whose sexual conduct becomes known. This hiring restriction flatly violates the law school’s nondiscrimination policy, which states: “Stanford Law School makes its facilities and services open only to employers who do not discriminate on the basis of age, religion, disability, ethnic background, national origin, gender, race, sexual orientation, or veteran status, or any other characteristic protected by applicable law.”
A federal law known as the Solomon Amendment requires the law school to suspend its nondiscrimination policy for military recruiting. Under the law, exclusion of military recruiters from campus could trigger the loss to the University of hundreds of millions of dollars in federal funds. In March 2006 the Supreme Court upheld the Solomon Amendment against a First Amendment challenge brought by a group of law schools and law school faculties, including the United Faculty of Stanford Law School.
As a result of the Solomon Amendment and the Supreme Court’s ruling, the law school will invite JAG Corps recruiters to campus, despite the military’s violation of SLS’s nondiscrimination policy, if enough students express genuine interest in interviewing with them.
Under the law school’s Student Interest Policy, when a new employer or one that does not have an established recruiting history here seeks to take part in the law school’s on-campus interview program, the Office of Career Services determines if there is sufficient student interest before scheduling the employer for interviews. The policy is OCS’s way of fairly allocating scarce interview room space. It also saves employers the time and money wasted by coming here when few, if any, students want to meet with them.
We, the undersigned individual faculty members, encourage those students who have a genuine interest in working for the military to contact JAG Corps recruiters directly and to arrange off-campus interviews, rather than express interest in the military’s participation in Spring OCI. By meeting with military recruiters off campus, you would permit the law school to keep in force its nondiscrimination policy. More importantly, you would show respect for those of your colleagues whose expression of sexual orientation disqualifies them for military service.
JAG Corps service is noble work. We are enormously proud of those graduates who go on to serve in the military. But we regard nondiscrimination as a fundamental educational principle. SLS has pledged to make no distinctions among you in the benefits or services it provides except according to merit or need. Because we believe the military’s policy of overt discrimination undermines this educational principle, we hope those of you who seek military service will arrange to meet military recruiters off campus.
Janet Alexander
Barbara Babcock
Joseph Bankman
Rick Banks
Juliet Brodie
Meg Caldwell
Joshua Cohen
Richard Craswell
Tino Cu