Is Stanford violating the Solomon Amendment, Part Three

In two prior posts ( here and here), I asked whether Stanford is violating the Solomon Act, which requires schools receiving federal funding to give access to military representatives for recruiting purposes, and to treat military recruiters in the same way they treat all other employment recruiters. Now, Larry Kramer, Stanford’s distinguished law school dean, has honored us with an email stating his position regarding this matter. In the lengthy and thoughtful message below, Dean Kramer (1) argues that the law school is not violating the Solomon Act and (2) explains why, legal considerations aside, faculty members (himself included) signed the letter discouraging Stanford students from having an on-campus interview with JAG recruiters.

Dear Paul:
I am the present Dean of Stanford Law School. Your blog posts about SLS and the Solomon Amendment were recently brought to my attention. Because there were two separate posts, making slightly different points, I was not sure how best to respond. I am sending this email to you directly in the hope that you’ll help with that. What I say below may not change the minds of those who do not like our position, but people should at least know accurately what we do and why.
Most important, we are not in violation of the Solomon Amendment, and the military is aware of everything we do. I know this because we have had discussions with them.
Take the letter first, since that is straightforward. I’m not sure whether you have read the FAIR decision, but the Court was explicit in stating that the reason the Solomon Amendment does not violate the First Amendment is because nothing in the legislation limits or prevents a law school or its members from protesting military recruitment policies. The letter is thus expressly protected speech. So, too, would be a letter by students or faculty defending or advocating the military’s practices. Speech on both sides of the debate–including speech advocating support or opposition–is legal and permissible. Our letter says it is an expression of individual views and not of school policy or of anyone in speaking in an official capacity, though it *could* in fact be an official school position without running afoul of the Solomon Amendment.
With respect to the student interest requirement, the blog report is somewhat inaccurate. We do contact students who have signed up to interview with the military to ensure that their interest is real. We do *not* ask them to show special or higher interest than anyone else, or to agree—-“in essence” or otherwise—that they will accept a job. We make the inquiry because, in the past, students have signed up to interview even though they had absolutely no interest in a job and, in some cases, no intent even to go to the interview. This has, at different times, been done by students on both sides of the controversy. That is, we have had students on the left signing up with the intent of going just to hassle and fight with the interviewer, and students on the right signing up just so that recruiters could do school-sponsored on-campus interviews. Two years ago, five students signed up but only one bothered to appear. When we asked why, the no-shows explained that they had never intended to go and had no interest in working for JAG, but had signed up merely to get military recruiters into the school’s career services program. Based on these experiences, we now inquire to ensure that whoever signs up has a genuine interest in actually interviewing for a job. We don’t pressure anyone, and if they say yes we accept the answer. We would do the same if we had a similar experience with any other employer, which we have not (not yet at least). We do, as you note in your second blog, make similar inquiries of other employers whenever circumstances suggest a need to gauge whether student interest is real.
The purpose underlying our student interest policy is perfectly straightforward, and the policy predates the controversy over military recruiting. We are privileged to have hundreds of employers ask to interview at Stanford each year. But we have limited staff to do the work of arranging interviews and limited space in which to put interviewers. We therefore try to reserve our space and staff time for employers who a reasonable number of students want to see. When students with no actual interest sign up for reasons having nothing to do with wanting a job, they waste the time of our both our staff and the employer who sends someone.
I have said before and will say again: though we oppose the current recruitment policies of the military as respects sexual orientation, we remain entirely willing to help students join JAG if that is what they want to do. If enough students express genuine interest, we treat the military exactly as we treat any other employer. And even when student interest has fallen short, we have never prevented the military from recruiting on campus. Any student who wants to talk to the military can do so, and if JAG sends someone to interview a student we do nothing to interfere. The only limitation the military faces is the same one every employer faces—which is that we do not do the work arranging their interviews unless a sufficient number of students actually want to a job to warrant dedicating our limited staff time and space to providing affirmative assistance. All this is entirely consistent with the Solomon Amendment.
What I have said so far goes only to the legality of what we do, not the reasons. Hence, you note that members of the Stanford faculty do not similarly try to dissuade students from talking to other employers. But no other employer has a rule precluding some students from obtaining employment for reasons wholly irrelevant to their ability to do the work. The military’s recruitment policy tells a segment of our community, for reasons that have no bearing whatsoever on their willingness or ability to serve, that they cannot do so because some other people fear or hate them for who they are. Were any other employer to do this, we absolutely would not tolerate it. Because of the Solomon Amendment, we nevertheless give the military equal access. But we preserve and exercise our right to protest their policies as wrong and unfair.
That said, it is important to underscore that opposition to “don’t ask, don’t tell” is not the same as, and does not signify, opposition to the military. Quite the contrary. We are proud of the many Stanford law students who have served or are now serving, both in combat and in JAG. The sacrifice made by this nation’s young men and women in uniform deserves and gets the full respect of everyone in our community—especially because their sacrifice has been made voluntarily. Which makes it all the more disturbing when some who are prepared to make, who *want* to make, the same sacrifice are forbidden to do so for reasons no more relevant than race or gender were in previous generations.

I’ll respond first to Dean Kramer’s statement that “because of the Solomon Amendment, we. . .give the military equal access.” This statement is true [note – at least as to motivation], but I think it’s worth noting that the Solomon Amendment does not require Stanford or any other institution to give the military access, equal or otherwise, to students. It only requires equal access if the university accepts federal money. If the nation’s “don’t ask, don’t tell” policy truly constitutes discrimination akin to race and gender discrimination of the past, then shouldn’t Stanford thwart that immoral policy by giving up federal funds, rather than trying to shame students into doing the job for it? I doubt that Stanford, in order to preserve federal funding, would allow the military on campus if it excluded African-Americans from service or segregated troops based on race. But maybe I’m naive.
As to the specifics of Stanford’s actual policy, Dean Kramer does not dispute (and I hope agrees) that if Stanford decides to gauge student interest in interviewing with the JAG Corps, it must gauge interest reasonably, rather than demanding a high level of desire to work for the JAGs, and must gauge interest the same way it does for other employers for whom it reasonably believes such inquiry is needed. Dean Kramer’s statements indicate that the law school meets this test, but some of his statements are not consistent with what I was told by several students. I take no position on who has this right.
Finally, Dean Kramer is correct that the Supreme Court’s decision in FAIR recognizes the right of faculty members to tell students their views about military recruting on campus. But I still consider the letter he and others signed problematic, though not legally so.
Dean Kramer insists that Stanford’s actions and words don’t signify hostility to the military. Yet to me, the statement rings hollow. Stanford is obstructing the military’s effort to recruit top people because it strongly dislikes an important policy of the military. But for the Solomon Act, Stanford would be obstructing the military even more. That seems like hostility.
If “don’t ask, don’t tell” were an immoral policy, then Stanford’s obstructionism (though not its claim of non-hostility) might be justified. Indeed, as argued above, one might expect Stanford to bar the military under these circumstances, even if it meant losing money. However, I don’t agree that the policy is immoral.
Moreover, while I respect Dean Kramer’s contrary view of this issue, I find his brief analysis quite one-sided. Here, briefly, is the other side.
As I understand it, “Don’t ask, don’t tell” is founded on the military’s view that, if gays and lesbians serve in the absence of such a policy, the military will be less effective as a fighting force. Presumably, opponents of the policy either believe that this consequence — a less effective fighting force — doesn’t matter, or they believe that the military’s assessment is incorrect. The former position seems unreasonable to me. The latter position may be correct, but one’s disagreement with top military officials over a question of military fact doesn’t constitute to a valid moral objection, in my view.
Better, then, to treat the military like other employers, which means not discouraging students who wish to serve their country from talking to military recruiters on campus.
SCOTT adds: Dean Kramer writes:

[N]o other employer has a rule precluding some students from obtaining employment for reasons wholly irrelevant to their ability to do the work. The military’s recruitment policy tells a segment of our community, for reasons that have no bearing whatsoever on their willingness or ability to serve, that they cannot do so because some other people fear or hate them for who they are.

While attributing phobic motives to those who disagree with him, Dean Kramer characterizes “don’t ask/don’t tell” as a “rule” or a “recuitment policy.” Unlike the “recruitment policy” adopted by other employers to whom he refers, however, “don’t ask/don’t tell” is the law of the land which the armed forces are honor bound to follow. In my opinion, Dean Kramer’s linguistic dance around this point does no credit to his bona fides as an advocate. Dean Kramer and Stanford fit into the unlovely picture I tried to sketch in “JAGs not welcome.”
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