On Sept. 25, military recruiters visited the law school at the University of California, Davis, where I teach. Normally that wouldn’t be cause for comment. My school is proud to have so many veterans in our student body, and we’re equally proud of our alums who use their law degrees to serve their country.
But a week into his second term, President Donald Trump released an executive order banning transgender people from serving in the military. The Department of Defense turned Trump’s order into policy in under a month, and in May, the Supreme Court allowed the trans ban to go into effect while the Trump administration challenges the three losses it had already racked up in the lower courts.
With the ban currently in place, the military recruiters coming to my campus were violating my school’s non-discrimination policy — as well as those of the University of California system as a whole, and the Association of American Law Schools (AALS). We were breaking our own rules by providing access to an employer that thinks, in the words of Trump’s executive order, identifying as transgender violates “a soldier’s commitment to an honorable, truthful, and disciplined lifestyle.”
For the first time, universities across the country are largely failing to do one of the only things they can in a situation like this: Speak up for the students they are failing to protect.
We’ve been down this road before. But this time, things seem different. For the first time, universities across the country are largely failing to do one of the only things they can in a situation like this: Speak up for the students they are failing to protect.
In 1993, after campaigning the previous year on a promise to lift the ban on gays serving in the military, President Bill Clinton announced the “Don’t Ask, Don’t Tell” policy, which required gay members to stay in the closet. Congress followed up with a second law, the Solomon Amendment, meant to pressure universities from restricting access to military recruiters. The amendment cuts nearly all federal funding to an entire university if any of its schools treat military recruiters worse than any other employers.
At the time, dozens of law schools banded together to sue, claiming that the funding threats violated the schools’ free association and speech rights — their ability to express their commitment to equal treatment regardless of sexual orientation. In 2006, a unanimous Supreme Court disagreed. The Solomon Amendment pushed universities to do something, not to say something, according to the court.
Schools had to give military recruiters equal access. But nothing stopped them from making statements, organizing protests, putting up signs next to interview rooms or taking other steps to support the gay students who were affected by the Clinton administration’s discrimination.
So that’s exactly what universities did. Entire handbooks were written to guide schools in developing “amelioration efforts,” which ranged from posting public notices, as required by the AALS, to funding student travel to LGBTQ job fairs. Choosing federal funds over equality, schools had shown their gay, lesbian and bisexual students what their rights were worth. Amelioration was a way to at least partially make up for it.
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“Don’t Ask, Don’t Tell” was finally repealed in 2011. Eight years later, Trump’s first ban on trans people in the military went into effect. (It was rescinded in 2021 by President Joe Biden.) By then, law schools knew the drill. Release statements, post notices, call for change, subsidize talks and other efforts to demonstrate our commitment to students regardless of gender identity. Make clear, in other words, that the diversity we tout in our admissions materials remains a fundamental part of our mission — even when politicians use federal funding to undermine our institutional values.
That time around, though, the AALS did not require amelioration to make up for the discrimination against trans students. It just sent out options that schools, it said, should consider: Expressing opposition, posting notices, sending a letter to students or hosting a forum or training on LGBTQ issues. Earlier this year, faced with a second Trump trans ban, the AALS simply referred back to its 2019 letter, noting somewhat depressingly that its guidance “remains pertinent.”
The current Trump trans ban has been in effect since May. How many of us have seen a statement from a law school acknowledging they are hosting military recruiters in violation of the school’s career services policies? What universities have spoken out on behalf of the students who will no longer benefit from its ROTC program, because the Trump administration says they lack the “humility and selflessness required of a service member,” simply because they are transgender? This time around, hardly a peep has been heard.
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Universities are justifiably scared of speaking out right now. Trump has made clear he sees them as enemies. He has made demands that could destroy them financially, or by eroding the values at the heart of their missions. Some universities have already agreed to pay, in some cases ceding aspects of the academic freedom that has made them world leaders in research and scholarship. More than 150 universities can now hide behind their newfound commitments to “institutional neutrality,” having pledged — or been forced by new state laws — to stay silent on political controversies. Trans rights surely counts among those.
But here’s the catch: most of these new policies, even the institutional neutrality policy that started them all — the University of Chicago’s Kalven Report of 1967 — dictate that universities should stay silent on political matters, unless they threaten “the very mission of the university.”
If that’s the commitment, look at what that means for a university’s trans students, faculty and staff. Their school’s silence is saying something to them, and loudly: Protecting you, ensuring your equal treatment, is not part of our mission.
My university hasn’t yet jumped onto the institutional neutrality bandwagon, and I’m glad. In fact, my law school ended up releasing a statement about the Trump trans ban before the military recruiters arrived on campus. People who are serving or want to serve in the military have our deepest respect, it says. We just want that opportunity to be available to all.
Do our universities now need to be neutral even on that?
