Academic journal article
By Smith, Patrick J.
St. John's Law Review , Vol. 79, No. 3
Yale Law School . . . believes that, under the U.S. Constitution, no one may be required, as a condition of federal funding, to promote a message of employment discrimination . . . .
. . . The School looks forward to the day when all members of its community have an equal opportunity to serve in the nation's Armed Forces.1
Effective recruitment is essential to sustain an all-volunteer military, particularly in a time of war . . . . The Solomon Amendment reflects Congress's judgment that a crucial component of an effective military recruitment program is equal access to college and university campuses.2
The on-campus recruiting season can be one of the most difficult components of the already trying task of preparing to become a lawyer. Each fall, many legal employers arrange meetings with second and third-year law students that will eventually "determine [the students'] initial career assignments."3 Adding to the tension inherent in this process is a recent controversy between legal recruiters for the armed services and law schools that feel the military, as an employer, violates the non-discrimination policies adopted by the Association of American Law Schools.4
The ability of the United States Congress to "raise and support" an effective military is a clearly enumerated Constitutional power.5 The Supreme Court has determined this power to be plenary in a variety of circumstances that recognize the wide scope of Congress' authority to build and govern the military.6 One of the chief ways the U.S. military seeks to accomplish this mandate is through the recruitment of wellqualified officers to lead the various branches of the Armed Forces.7 Among the vast array of officers employed throughout the military is a group of practicing attorneys commissioned for service in the Judge Advocate General's Corps ("JAG").8 Though each branch of the military utilizes its own methods for the selection of Judge Advocates, each relies on the on-campus interviewing and recruiting process typical of employers within the legal profession.9 The United States Army, for instance, sends an officer to conduct screenings at nearly every accredited law school in the country.10
The Association of American Law Schools ("AALS" or the "Association")11 enjoys an authority among its member law schools similar in practical effect to the plenary powers of the federal Congress. A principle criterion for membership in the AALS is compliance by members of the Association with the bylaws set forth by the organization as a whole.12 According to the Association's core values, as laid out in its by-laws, opposing discrimination is a chief goal of the AALS.13 To that effect, the AALS opposes discrimination on the basis of several factors and in several contexts and encourages its members to do the same.14 Every member law school, therefore, publishes a non-discrimination policy announcing its commitment to prohibiting intolerance based on certain protected categories.15 In 1990, the AALS chose to add sexual orientation to its list of protected categories in an effort to prevent potential institutional bias against homosexual students and faculty.16 The non-discrimination policies of member law schools are meant to cover all aspects of law school administration,17 including the recruitment process by which legal employers seek out law students for summer or post-graduation employment.18
It is in the recruiting context that the U.S. military and the AALS, as well as some of its member institutions, have run squarely into one another. The military uses on-campus recruiting to seek out new Judge Advocates as well as interns for summer JAG Corps internships.19 As mentioned, the AALS has sought to ensure that this process is free of discrimination.20 However, since the military continues to operate with the "Don't Ask, Don't Tell"21 policy regarding service by homosexual military personnel, the AALS considers the military, in its capacity as a potential employer, to be in contravention of its nondiscrimination directive. …