Q. What are the federal laws governing military recruiting at law schools?
A. In 1995, Congress passed legislation known as Solomon I, which threatened to cut off Department of Defense (DOD) funding to any school that did not allow the military to recruit on campus. In 1997, Congress enacted Solomon II, which broadened the types of funding that could be withheld to include federally guaranteed student loans, federal work-study funds, and federal research funds. In October 1999, Congress passed legislation protecting student aid funding, but leaving other federal funding at risk for schools that did not facilitate military recruiting on campus.
Q. What is the history of USC Law’s response to these federal laws?
A. After the passage of Solomon I, USC Law was among just a handful of law schools that continued to restrict access to employers who were not in compliance with our nondiscrimination policy. Most law schools changed their policies to allow military recruiting. After passage of Solomon II, USC Law created an exception to its nondiscrimination policy specifically to accommodate the military. The school worked with military representatives to facilitate interviews with our students at the USC ROTC office and ensured that students who were interested in these positions were able to interview with ease. The practical result of the policy-exception for military recruiters was that we provided our students with ready access to materials and interviews with military recruiters without violating our nondiscrimination policy. A number of students (now graduates) were able to obtain military positions through these interviews. We also received letters from several military representatives indicating that this arrangement satisfied their expectations.
On December 17, 2001, the Air Force asked USC President Sample to clarify USC’s policies regarding military recruiters. The USC General Counsel provided a statement of our non-discrimination policy and detailed our implementation of the policy-exception. However, a May 30, 2002, letter from the Air Force indicated that they had determined USC Law was not in compliance with federal law, and that only full access to OCI would satisfy the law. USC Law was given until July 1, 2002, to modify practices. If the deadline was not met, the matter would be forwarded to the Secretary of Defense with a recommendation to deny federal funding to USC. The General Counsel determined that a denial of such funding would result in the loss of approximately $300 to $500 million in federal funding to the University.
Further communication from the government, including letters from the Air Force General Counsel and the Department of Defense General Counsel, made it clear that the DOD would take all legal avenues available to enforce their interpretation of the Solomon Amendment’s provisions regarding military recruiting. Because of the dire effect on the University of alleged non-compliance, the Provost determined that USC must comply with the Air Force directive and allow full military participation in OCI programs. Beginning in 2003, USC Law provided military recruiters with full access to OCI programs.
Q. What is the current legal status of the issue?
A. Several schools pursued a lawsuit against the federal government alleging that the current enforcement of military recruiting policies violates schools’ right to free speech. The case was heard by the U.S. Supreme Court in 2005, and earlier this year the court sided with the government in finding that enforcement of military recruiting policies do not violate schools’ right to free speech. Chief Justice Roberts wrote that “A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message. The Solomon Amendment neither limits what law schools may say nor requires them to say anything.”
Q. Why is military participation in USC Law’s On-Campus Interviewing Program so controversial?
A. The crux of the disagreement is that the military’s hiring practices conflict with the law school’s longstanding non-discrimination policy. USC Law’s policy requires employers who participate in OCI to certify that they do not discriminate in employment based on a variety of criteria, including age, disability and sexual orientation. Recruiters representing the military admit that they discriminate on the basis of those criteria and consequently cannot certify that they do not discriminate.
Q. What is the law school’s nondiscrimination policy?
A. The law school’s longstanding non-discrimination policy reads:
USC Law is firmly committed to a policy against discrimination based on ethnicity, national origin, disability, race, religion, political beliefs, gender, sexual orientation or age. Consequently, the Career Services facilities of the Law School are available only to those employers whose practices are consistent with this non-discrimination policy.
This policy complies with USC’s Principles of Community, adopted by the Division of Student Affairs:
USC is a multicultural community of people from diverse racial, ethnic and class backgrounds, national origins, religious and political beliefs, physical abilities and sexual orientations. Our activities, programs, classes, workshops/lectures and everyday interactions are enriched by our acceptance of one another, and we strive to learn from each other in an atmosphere of positive engagement and mutual respect. … All who work, live, study and teach in the USC community are here by choice, and as part of that choice should be committed to these principles which are an integral part of USC’s focus, goals and mission.
Q. How does the law school’s nondiscrimination policy compare to those of other law schools?
A. In 1990, the Association of American Law Schools (“AALS”) adopted bylaws that prohibited member schools from discriminating on the basis of sexual orientation. At that time, USC Law had in place a nondiscrimination policy that already complied with those AALS bylaws. By the early 1990s, most American law schools adopted similar policies in order to maintain membership with the AALS. AALS requirements on nondiscrimination are included in its handbook for member organizations, which can be found at www.aals.org/about_handbook_requirements.php.
Q. What was the AALS response to the changes in the law?
A. The American Association of Law Schools recognized the difficulty of the situation. To mitigate the effect of the military’s discriminatory hiring practices on law school communities, AALS recommended that schools allowing military recruiting also implement amelioration activities. USC Law continues to follow AALS recommendations, which include:
• posting notices alerting students that the military discriminates on a basis not permitted by school or AALS policies;
• hosting discussion sessions and bulletin boards for faculty and students to discuss these issues;
• active support of gay and lesbian student organizations; and
• participation in Lavender Law, an annual conference sponsored by the National Lesbian and Gay Lawyers Association.
Q. What new steps are being taken to ameliorate the impact of military recruiting on the USC Law community?
A. USC Law posts notices throughout the law school and recruiting locations regarding the school’s non-discrimination policy and the military’s non-compliance. In addition, the law school:
• Conducts workshops, both independently and with student group co-sponsorship.
• Reminds students of the complaint-procedures in place regarding discrimination in interviewing.
• Works with student leadership of various student organizations, including the Student Bar Association and the Gay and Lesbian Law Union, in order to help students understand the new procedures; offer assistance to students with concerns about the procedures; and remind students of the availability of CSO counselors to support them in their individual job searches.
• Continues to research the amelioration efforts at other law schools, and augment ameliorative actions with programs that have proven successful at other schools.
• Provides support for student and faculty participation in annual Lavender Law conferences.
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