Gardina: Equal employment elusive for gay students

Editor’s note: Vermont Law School Professor Jackie Gardina wrote the following statement from the Society of American Law Teachers last month in response to the House Armed Services Committee’s amendment that would make the repeal of the “don’t ask, don’t tell” law more difficult. Gardina is a member of SALT’s board of governors.

The Society of American Law Teachers condemns a recent push by House Republicans to derail, delay and defund the repeal of Don’t Ask Don’t Tell. These efforts are a potent reminder that the fight to end Don’t Ask Don’t Tell is not over. As academic institutions prepare to allow the military back on campus, they must remain vigilant and continue to fight efforts to undermine repeal of the only federal law that affirmatively discriminates based on sexual orientation.

On May 11, the House Armed Services Committee adopted an amendment to the National Defense Authorization Act of 2012 that would make the repeal process more difficult. Rep. Duncan Hunter offered the amendment, which reflects the language of his “Restore Military Readiness Act of 2011” bill (H.R. 337). It requires that each branch service chief certify that repeal of Don’t Ask Don’t Tell “will not degrade the readiness, effectiveness, cohesion, and morale of combat arms units and personnel of the Armed Force under the officer’s jurisdiction.” Hunter’s efforts are a thinly veiled attempt to delay repeal.

Unfortunately, Hunter is not alone in his desire to maintain the status quo. Rep. Buck McKeon, chairman of the House Armed Services Committee, has publicly stated he wants to “repeal the repeal.” McKeon has held two hearings on repeal implementation, inviting witnesses to testify about its perceived detrimental effect on military effectiveness. At least four expected candidates for president in 2012 have voiced their opposition to repeal, and some have gone as far as to say that if elected, they would ensure that Don’t Ask Don’t Tell remains the law.

These actions and statements send a clear message that proponents of repeal must remain vigilant. “The Don’t Ask Don’t Tell Repeal Act of 2010” neither repealed 10 U.S.C. § 654 nor prohibited discrimination based on sexual orientation in the armed forces. Instead the Act provides for repeal of Don’t Ask Don’t Tell only after statutorily prescribed actions occur. The statute does not set forth a time frame for the certification process and explicitly states that Don’t Ask Don’t Tell remains in effect until the requirements are met. As a result, the Ninth Circuit Court of Appeals refused the Department of Justice’s request to suspend the appeal in Log Cabin Republicans v. Gates.

As a result, law schools are still bound by the Association of American Law Schools’ (AALS) amelioration requirements to post a notice to the general law school community that military practices remain inconsistent with the school’s nondiscrimination policy under the association’s bylaw 6-4(b) and to take other steps to ensure a welcoming and inclusive environment for gay and lesbian students. Until 10 U.S.C. § 654 is repealed, and the armed forces are prohibited from discriminating based on sexual orientation, there is no guarantee that gay and lesbian students will truly enjoy equal employment opportunity.

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