This case study was written by Professor Jim Salzman with Professor Janet Halley and Stacey Sobel. It examines the development and application of the Department of Defense’s policy toward homosexuals in the military — the Don’t Ask, Don’t Tell, Don’t Pursue policy. The case study has been written for use in introductory or advanced administrative law classes or constitutional law classes teaching procedural due process. The history of Don’t Ask, Don’t Tell, is rich, raising fundamental issues that go to the heart of the administrative process. The case study requires students to analyze primary documents and provides the class the opportunity:
To explore the different means of control over agency action.
These include the stated public policy of the President, Executive Orders, Statutes, Regulations, and Non-legislative rules.
To show the dynamic interplay of actors within the administrative process.
The final military policy differed substantially from Clinton’s stated policy goals at the outset of the conflict. Who were the institutional players that brought this about? What are the relative strengths and weaknesses of each institution’s influence over the others? More generally, how is it that the explicit policy of the President (who, after all, directs the Executive Branch) could be transformed into such a different final Don’t Ask, Don’t Tell policy?
To examine the role of rhetoric in the administrative state.
Ask most students about the Don’t Ask, Don’t Tell policy and they’ll likely respond with a general sense that it provides some measure of protection to homosexuals serving in the armed forces. Why has this perception of the policy persisted despite reports to the contrary?
Upon taking office in 1992, Bill Clinton immediately became embroiled in a heated dispute over eliminating the Department of Defense (DoD) ban on gays serving in the military. Seeking to fulfill an early campaign promise, his initiative met fierce opposition both within and outside the new administration. Today, the issue remains a lively one at law schools both because of the Solomon Amendment, which restricts federal funds to schools that exclude military recruiters, and opposition to the ban on gays in the military by students and student organizations such as Lambda and civil liberty groups. As a result of publicity surrounding the July, 1999, murder of Private First Class Barry Winchell, the Don’t Ask Don’t Tell policy became a prominent news item during the presidential primaries. Democratic presidential candidates Gore and Bradley both called for a reassessment of the policy while the Republican candidates either supported the policy or called for tougher measures against gays in the military. President Clinton, meanwhile, has candidly admitted it doesn’t work. Following this class, students will understand far better both how the policy operates in practice and the difficulty in ‘fixing it.’
- Washington Post article, “Discharged Gay Colonel Pins Hope on Clinton’s Promise” (Appendix A)
- UCMJ – Section 925, Article 125, Sodomy (Appendix B)
- Family and Medical Leave Act – Debate (Appendix C)
- Clinton Press Conference, July 19, 1993 (Appendix D)
- Department of Defense Directive 1332.14, Enlisted Administrative Separations (Appendix E)
- Section 571 of the National Defense Authorization Act for Fiscal Year 1994 (Appendix F)
- Report of the Secretary of Defense: Review of the Effectiveness of the Application and Enforcement of the Department’s Policy on Homosexual Conduct in the Military (Appendix G).