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"Suspend 'Don't Ask, Don't Tell'"--A Commentary by Prof. Kenji Yoshino


(This essay was originally published in the Hartford Courant on October 13, 2002.)

Suspend 'Don't Ask, Don't Tell'
By Kenji Yoshino, associate professor of law

The U.S. military and American universities have been at odds for decades over the issue of gay rights. The military has long excluded openly gay and bisexual individuals, most recently according to Congress' 1993 "Don't ask, don't tell" policy. Many universities, on the other hand, have policies that prohibit employers who discriminate on the basis of sexual orientation (or race, sex or religion) from conducting on-campus job interviews with students. Although universities did not fashion these policies with the military in mind, they have historically not exempted the military from them.

This conflict has now come to a head with the aggressive enforcement of the Solomon Amendment, passed by Congress in 1996. The amendment cuts off federal funds from universities with nondiscrimination policies that restrict military recruitment. Faced with losing $328 million in federal funds, Harvard was recently forced to exempt the military from its nondiscrimination policy. This past week, Yale announced that it was temporarily suspending its nondiscrimination policy and allowing military recruiters on campus but said it intended "to pursue a determination of whether the Law School's current policy satisfies the legal requirements."

What's strange about these congressional enactments - the Solomon Amendment and "Don't ask, don't tell" - is that they hurt the institution they seek most to protect, the U.S. military. The military is struggling to increase the number of service members in a time of national crisis. This is an eminently worthy goal, but one ill served by the Solomon Amendment and "Don't ask, don't tell" for at least three reasons.

First, the military is seeking to recruit from a university population, which is much more pro-gay than the general population. Congress' legislation will impede the recruitment of these students because openly gay students will be prevented from serving their country and their pro-gay peers will have to wrestle with the need to surrender a moral commitment to do so. When the military comes to recruit on campuses, it will be met with protests from students who otherwise might have signed up to join it.

Second, Congress is impinging on university autonomy by threatening schools with funding cuts if they do not give up their longstanding nondiscrimination policies. If federal funding is withdrawn from Yale, basic research and clinical trials (in, for example, breast cancer and HIV prevention) will be terminated and patients' welfare will be endangered. The military will inevitably lose support among students if it forces their schools to choose between a moral principle on the one hand and crucial research and services in the public interest on the other.

Third, the military has itself rightly suggested that its anti-gay policy is not as important as military efficiency. Historically, the military has been particularly accepting of gays during times of national crisis, such as World War II. Recent evidence suggests that the military is again adhering to the principle that we should set aside differences during times of emergency and stand together as Americans. Recently, the Servicemembers Legal Defense Network, a group dedicated to ending discrimination in the military, reported that two naval service members who came out as gay were told they would not be terminated even though this is a clear violation of "Don't ask, don't tell." In at least these cases, the military has indicated that "Don't ask, don't tell," far from being necessary to military readiness, is inconsistent with it.

If Congress really seeks to support military recruitment at universities, it should temper the Solomon Amendment or suspend "Don't ask, don't tell." Either course would permit schools to welcome military recruiters to their campuses while adhering to their policies of nondiscrimination. Instead of forcing the military into acrimonious and time-consuming battles with every university across the country, Congress should create a framework in which the military and universities can make common cause in a time of national crisis. This is the most efficient and equitable way to ensure that the largest number of university graduates will express their patriotism by serving their country.

Kenji Yoshino is an associate professor at Yale Law School.