The Solomon Amendment

So as it turns out, the nomination of Miers was not the biggest news at Stanford Law School on October 3. Much of the school's attention was focused on Solomon Amendment issues. The Solomon Amendment is the federal regulation that essentially requires law schools to give JAG recruiters substantially equal access to students as other organizations that are interviewing on campus; the penalty for noncompliance is the withholding of federal funds from the school. For years Stanford Law School has maintained a policy forbidding organizations with discriminatory policies from recruiting on campus, and has consequently denied JAG access to students on the basis of the military's discrimination against homosexuals..

When the Solomon Amendment took effect, the faculty at Stanford Law School decided it was committed enough to the nondiscrimination policy to accept the consequences, even up to forfeiture of all federal funding that would otherwise come to the law school. However, the Department of Defense subsequently rewrote its regulations so that refusal by the law school to make an exception to its policy and allow JAG recruiters on campus could result in the government cutting off federal funds to other university departments totalling over $700M per year. This fall, the Supreme Court is scheduled to review the Third Circuit's ruling that this amendment may not be enforced, but for now the amendment is in effect..

Faced with this threat, Dean Kramer issued a statement in September condemning the government's action but indicating that the law school would allow a JAG recruiter on campus under duress. Now setting aside for a moment the libertarian objection to the government taking money from an institution and then giving it back on the condition that the institution violate its own internal policy and provide preferential treatment for the government (remember, the government could care less whether Stanford blocks other homophobic recruiters), the real problem here is that the government is essentially taking hostages in this battle. After discovering that the law school would call its bluff, the government apparently decided it wasn't good enough to threaten the law school itself, and that it would go after innocent and unaffiliated departments instead. The following letter i sent to the president of the university on the same day that student leaders met with him to ask for Stanford to join the litigation opposing the Solomon Amendment. i believe the letter speaks for itself, and i stand by my use of the word 'terrorism' as i define it: causing harm to innocent third parties in an attempt to blackmail an organization into changing its actions..

President Hennessy,

i understand you are probably receiving a lot of emails on the subject of military recruiting at the Law School, but i think this one may offer a different perspective than most. As you know, there was some controversy at the Law School last month regarding the presence of military recruiters on campus. My understanding is that Dean Kramer was forced to make a difficult decision he should not have had to make, as he was caught between the Law School policy to exclude discriminatory employers and Stanford University's decision not to join the litigation challenging the Solomon Amendment. The big problem here is that the federal government is hijacking the Law School by holding other university departments hostage as it threatens to withold funding from those departments based on actions of the Law School that the other departments cannot control. Surely any reasonable person will agree that this practice is wrong, and that the government is committing a most egregious violation of the freedom of conscience by threatening to subject innocent victims to punishment in an attempt to blackmail the Law School into recanting its ideological position..

It should be clear to anyone that this government-initiated terrorism was possible only because of internal inconsistency among university policies relating to the issue. Although it is ultimately the government's moral obligation to rescind such a heinous attempt at coercion, you as president of this university are uniquely in a position to defuse the situation in the meantime by instituting a university-wide policy. With a single policy in effect to address this issue, the entire university would be on the same side, and the government's attempt to play one department against another would lose its effectiveness. Thus if the Law School's policy of banning discriminatory recruiters is allowed to continue, the university as an entity should adopt the same policy so that when the government's wrath falls on other departments they are at least ideologically complicit based on their being subject to the university-wide policy. Conversely, if the university chooses to take a stance that explicitly does not denounce the Solomon Amendment and its effects, it should mandate that the Law School adopt an identical stance, so as to relieve the Law School administration from irreconcilable conflicts in the future..

In short, as long as the federal government continues to impose its will in the form of a Hobson's choice, i feel your responsibility as president is to protect university departments from having to make decisions that negatively impact other departments. While i would prefer to see the university align its policy with that of the Law School, i understand that the reverse position is equally consistent. The important thing though is to see to it that one of these two options is implemented; i trust you have the courage to do so, and i wish you wisdom in your decision..

Tim Sanders
Stanford Law Class of 2007