August 30, 2017 at 2:28 pm EDT | by Chris Johnson
Law schools weigh bans on military recruiters over trans policy
Elena Kagan, Supreme Court, gay news, Washington Blade

As dean of Harvard Law School, Associate Justice Elena Kagan tried to find a compromise on banning military recruiters in the days of “Don’t Ask, Don’t Tell.” (Washington Blade photo by Michael Key)

With President Trump directing the U.S. military to enact a prohibition on transgender military service, at least two law schools — the Vermont Law School and Mitchell Hamline School of Law — are considering whether to enact a ban on military recruiters in response, which would be similar to policies they had under “Don’t Ask, Don’t Tell.”

Maryellen Apelquist, a spokesperson for the Vermont Law School, said in response to a Washington Blade inquiry the school will consider banning military recruiters in the aftermath of Trump’s memo.

“President Trump’s ban on transgender people joining the military is of grave concern,” Apelquist said. “The Vermont Law School administration will take a hard look at the details of the policy to determine if our discrimination policy will allow military recruiters on the VLS campus.”

The other school to ban military recruiters under “Don’t Ask, Don’t Tell,” William Mitchell College Law School, has since merged with its longtime rival, the Hamline University School of Law to become the Mitchell Hamline School of Law.

Doug Belden, a Mitchell Hamline School of Law spokesperson, said a ban on military recruiters “is being considered by members of Mitchell Hamline leadership and faculty,” but a decision wouldn’t be reached by Blade deadline on Wednesday.

A senior Mitchell Hamline faculty member, who spoke on condition of anonymity, said nothing has been decided, no meetings have taken place on the issue and discussion has been limited to one or two emails.

With the nation poised to enact a policy similar to “Don’t Ask, Don’t Tell” — except a ban on transgender service members as opposed to openly gay service members — all the challenges and opposition to the now-repealed 1993 law may soon reemerge.

One question is whether law schools with non-discrimination policies will continue to cooperate with military recruiters if the armed forces refuse to allow transgender people in its ranks. Such discrimination would conflict with non-discrimination policies that ban anti-transgender discrimination and arguably those that ban discrimination on the basis of sex.

In the early days of “Don’t Ask, Don’t Tell,” many law schools under guidance from the Association of American Law schools, which bars its members from discriminating on the basis of sexual orientation, allowed military recruiters on campus, but didn’t facilitate meetings between recruiters and students, provide on-campus meeting spaces or allow recruiters access to the roster of law school students.

That changed in 1996 after passage of the Solomon Amendment, which allows the secretary of defense to withhold federal funding to schools — not just from the Pentagon, but from other arms of the U.S. government, including the Department of Education, the Department of Health & Human Services and the National Nuclear Security Administration — if those schools inhibit military recruiters, or even deny them access to lists of law students.

The Solomon Amendment was challenged in federal court on the basis it violated rights to free speech and freedom of association — an argument that prevailed before the U.S. Third Circuit Court of Appeals. However, the U.S. Supreme Court upheld the law in 2006 as constitutional in a unanimous decision written by U.S. Chief Justice John Roberts.

“The law schools object to having to treat military recruiters like other recruiters, but that regulation of conduct does not violate the First Amendment,” Roberts wrote. “To the extent that the Solomon Amendment incidentally affects expression, the law schools’ effort to cast themselves as just like the schoolchildren in Barnette, the parade organizers in Hurley, and the Boy Scouts in Dale plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents.”

Despite the Solomon Amendment and the Supreme Court decision upholding the law, two schools — the Vermont Law School and William Mitchell College of Law — were adamant in outright refusing to cooperate with military recruiters. That position came at the expense of federal funds, although the schools had less in federal funding to begin with compared to large research universities.

(As then-dean of Harvard Law School, U.S. Associate Justice Elena Kagan tried to walk a middle line, writing in email to students she “abhor[s] the military’s discriminatory recruitment policy,” but at the same time working out a compromise that enabled a veterans’ organization to sponsor military recruiters on campus as opposed to the U.S. military itself. After the Supreme Court upheld the Solomon Amendment, she allowed military recruiters full access to Harvard’s campus. Kagan explained her position at the time and views against “Don’t Ask, Don’t Tell” during her 2010 confirmation hearing.)

For a brief time in 1998, the Vermont Law School and William Mitchell College Law School reversed itself and allowed military recruitment on campus when the Departments of Defense and Education determined the U.S. government could withhold federal student loan aid as a result of the Solomon Amendment. Gay former Rep. Barney Frank in 1999 pushed through Congress a two-sentence law clarifying the law doesn’t apply to students, allowing the Vermont Law School and William Mitchell College Law School to resume its ban on military recruitment.

After “Don’t Ask, Don’t Tell” was lifted in 2011 under former President Obama, the Vermont Law School and William Mitchell College Law School resumed cooperation with military recruiters. It remains to be seen whether those schools will resume their bans — or if other schools will begin new ones — now that Trump has directed the U.S. military to engage in anti-trans discrimination.

If Vermont Law School or Mitchell Hamline School of Law resume their bans on military recruiters, the schools could once again forfeit federal funds.

Apelquist said the school lost between $300,000 and $500,000 as a result of the Solomon Amendment in the days of “Don’t Ask, Don’t Tell,” but doesn’t yet have an estimate of current federal funds.

The Association of American Law Schools didn’t respond to multiple requests from the Blade to comment on whether it would have any guidance to schools in the wake of Trump’s order to ban transgender service members.

It should be noted those schools sought fit to allow military recruiters on campus after “Don’t Ask, Don’t Tell” repeal even though the ban on transgender service from the 1980s was still in place — arguably a signal that anti-transgender bias didn’t warrant a ban on military recruiters. Trump’s ban essentially puts the transgender ban back in place after it was lifted during Obama’s final year in office.

LGBT military groups seeking to challenge Trump’s transgender military ban said they’d welcome efforts from law schools against the new policy, but were optimistic that would be unnecessary based on pending litigation. Three lawsuits — two filed this week, one before the Trump memo — are now calling on the federal court system to block the transgender ban from going into effect.

Matt Thorn, executive director of OutServe-SLDN, said law schools should decide their own policy, but the transgender ban “does warrant discussion on their part and with their respective governing bodies.”

“OutServe-SLDN feels confidant that we will persevere in federal court,” Thorn said. “Hopefully it doesn’t come to barring recruiters from finding young, bright and dedicated individuals who want to serve in our armed forces, including those who are transgender.”

Ashley Broadway-Mack, president of the American Military Partner Association, predicted federal courts would take action against the ban before law schools would need to act.

“Any qualified American should be able to serve their country, regardless of their gender identity,” Broadway-Mack said. “Donald Trump’s directive telling the military to single out and discriminate against transgender service members and qualified recruits is unconstitutional, and we are hopeful the courts will reverse his abominable and unpatriotic action. We believe that justice will prevail and law schools will not feel compelled to restrict military recruiters access.”

D’Arcy Kemnitz, executive director of the National LGBT Bar Association, said she’s not yet ready to call for action from law schools based on a statement this week from Defense Secretary James Mattis, who said despite the ban transgender people currently in service will be able to stay pending a review.

“The LGBT Bar is grateful to the U.S. military and those who serve bravely and without reservation every day,” Kemnitz said. “Asking law schools to prevent recruitment on their campuses is premature, especially in light of Secretary Mattis’ statement on Tuesday on the continued service of trans individuals.”

Kemnitz added the National LGBT Bar Association itself has allowed Judge Advocate General’s Corps military recruiters to come each year to the annual career fair hosted by the National LGBT Bar Association, and those efforts “make the armed services more diverse, not less.”

 

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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