JAG Litigation and the FAIR Ammendment

I, along with a few of my classmates, received this email from Dean Sullivan yesterday

January 28, 2004

Dear Stanford Law School Community:

I write to update you on a development in the Solomon Amendment
litigation. You'll recall that the United States Armed Services closes its
ranks to persons revealed to be lesbian, gay, or bisexual, that most law
schools, like ours, close their doors to employers who discriminate on the
basis of sexual orientation, and that the Solomon Amendment is the federal
law that cuts off federal funds to universities that deny access to
military recruiters on this basis. Faced with communications by the
military threatening to apply this sanction, many of the nation's law
schools have let military recruiters on campus despite their
nondiscrimination policies. Some of those law schools or members of their
faculties have filed lawsuits against the Secretary of Defense challenging
the constitutionality of these threatened applications of the Solomon
Amendment.

Unlike those law schools, Stanford Law School has always abided by its
non-discrimination policy and has never been found by the military to be
out of compliance with Solomon. Nonetheless, many Stanford Law School
faculty members and students (especially members of American Constitution
Society and Outlaw) have worked hard over the last few months to find a way
to contribute to the significant constitutional issues raised by the
pending legal challenges. In particular, they have focused on the possible
participation of a body of individual faculty members in a lawsuit filed in
federal court in New Jersey and now pending in the Third Circuit by an
association called Forum for Academic and Institutional Rights ("FAIR"),
which challenges Solomon as violating universities' freedoms of speech and
association.

As a result of these efforts, the following resolution was approved at
the Stanford Law School faculty's regular December faculty meeting:

"'United Faculty of Stanford Law School,' acting as a majority vote
of thirty of the forty-three vote-holding faculty members of Stanford Law
School, to wit,

Voting aye: Janet Cooper Alexander, Barbara Allen Babcock, Joseph Bankman,
R. Richard Banks, Richard Craswell, Mariano-Florentino Cuellar, Michele
Landis Dauber, George Fisher, Barbara H. Fried, Lawrence M. Friedman, Paul
Goldstein, Henry T. Greely, Thomas C. Grey, Deborah R. Hensler, Pamela S.
Karlan, Mark Gregory Kelman, Amalia Kessler, William Koski, Lawrence
Lessig, Jennifer Martinez, Miguel Angel Méndez-Longoria, Maude H. Pervere,
Robert L. Rabin, Margaret Jane Radin, Deborah L. Rhode, James F. Strnad II,
Kathleen M. Sullivan, Barton H. Thompson Jr., Michael S. Wald, and Allen
Weiner;

Voting nay: none;

hereby joins the Forum for Academic and Institutional Rights (FAIR) on the
following conditions: (1) As soon as is convenient and practicable, FAIR
will amend the complaint filed in Forum for Academic and Institutional
Rights, et al., v. Donald H. Rumsfeld, et al., (Civ. Action No. 03-4433
(JCL), D.N.J. (2003)), to state words to the effect that 'every member of
FAIR has permanently suspended the application of its non-discrimination
recruiting policy to military recruiters or has taken steps to accommodate
official access by military recruiters that it would not have taken in the
absence of the Solomon Amendment'; and (2) in the meantime, in all FAIR's
future descriptions of its members, it adopt the quoted language (or
sufficiently equivalent language) and, if appropriate, cite to the
particular paragraph of the complaint that is to be amended."

For those interested in learning more about this litigation, see
http://www.law.georgetown.edu/solomon/SolomonLitigation.html
or
www.solomonresponse.org
Yours truly,
Kathleen Sullivan

Personally, I think our military should be desegregated. I think the don't ask don't tell policy is outmoded, and sexual orientation has little to do with a professional armed forces. However, I think the FAIR group of law schools are overreaching in their argument. In whining that it "is not right" for the entire university to lose all federal funds for only the law school refusing to allow JAG recruiters, these administrators and distinguished professors are realizing the force of the trap they set with Title IX.

Let me explain - if a school offers the same number of spots for its male and female soccre clubs, it risks losing ALL its federal funding, just as with JAG recruiting. Why? Because current interpretation Title IX demands an equal number of women and men athletes on scholarship at a university. If universities do not comply, well they are vulnerable to lawsuit and losing all federal funding. In some cases you will have 20 men competing for a scholarship in a sport other than football/basketball (if it is recognized as varsity) while the same unversity will give varsity status (and plenty of scholarships with it) to sports such as horseback riding - so long as it is for women. Yet, the same "distinguished" professors and law students who are so inflamed at the possibility of the law school costing the entire univeristy funding don't bat an eyelash at this disparity.

So excuse me if I think, in spite of my support for equal right for those of alternative sexual lifestyles, that those complaining are using arguments that smack of hypocrisy.