Anthony Infanti at Feminist Law Profs has got a great post up about the decision of the President of San Jose State University to ban blood drives on campus. Why? Because the FDA’s refusal to accept the blood of any man who has sex with a man since 1977 violates the school’s antidiscrimination policy.
In his post, Infanti picks apart the language of the FDA rule and finds it’s vague and that it traffics in stereotypes (obvs). What I find interesting, though, is how this decision meshes (or doesn’t) with the Supreme Court’s decision a couple of years ago holding that law schools that receive federal funds do not have a First Amendment right to exclude JAG recruiters even though JAG’s (and the rest of the military’s) Don’t Ask Don’t Tell policy violates the schools’ antidiscrimination policies. Clearly, this is different since, among other reasons, the organizations running the blood drives are not, as far as I know, government entities.
And, well, blood drives are good. DADT is bad. I agree 100% with law schools that DADT is discriminatory and that law schools should not be forced to be complicit in it (given that virtually every American law school receives federal funds, virtually every law school is implicated). And I agree that it’s ridiculous to preclude gay men from donating blood based on assumptions that, especially with the rise of HIV among heterosexual women, are now shaky at best and baseless at worst. But I can’t help thinking that maybe this isn’t where we should be drawing the line in terms of antidiscrimination policies. Or maybe we should force blood drives just off campus, as law schools sought to do with JAG recruiters.