Yale Law School is now required to allow military recruiters to participate in its career fair, following a decision last month by the 2nd U.S. Circuit Court of Appeals in a suit filed by 44 Yale Law School faculty members. The ruling upholds a federal law that requires institutions that receive federal funding to grant military recruiters access to their career fairs.
Since 1972, the New Haven, Conn., law school has required employers who wished to take part in its career fairs to sign a pledge that ensures that they abide by the school's policy against prejudice. In 1978, the school adopted a non-discrimination policy that prohibited discrimination based on sexual orientation. When its non-discrimination policy was extended to include sexual orientation, the pledge was no longer consistent with the military's "don't ask, don't tell" policy, which prohibits openly gay or lesbian individuals from serving in the armed forces, effectively shutting the recruiters off from Yale Law School's placement services.
Since the spring of 2002, the Bush administration has begun to enforce a 1996 federal law known as the Solomon Amendment, which provides for the suspension of federal funding for schools that do not offer military recruiters full access to their career fairs.
In 2003, prompted by the possibility of losing about $350 million in federal funding and eager to defend Yale's homosexual students, Yale Law School professor Robert Burt, along with 43 other law school faculty members, filed suit against the Department of Defense in Connecticut's District Court.
Burt, a lead plaintiff in the suit, told The Herald that the main argument against the amendment is that, as applied, it infringes on the school's First Amendment rights to expression and academic freedom. In January 2005, U.S. District Judge Janet Hall ruled in favor of the law school, allowing it once again to bar military recruiters from its career fairs, according to a Dec. 6, 2005, Yale Law School press release.
The Department of Defense appealed to the 2nd Circuit Court of Appeals. By the time the case was heard and decided, however, another lawsuit concerning the Solomon Amendment had reached the Supreme Court, where the constitutionality of the law was upheld, according to a Sept. 20, 2007, article in the New Haven Register. On Sept. 17, the appeals court overturned the lower court's ruling, forcing Yale Law School to suspend its non-discrimination policy and allow military recruiters back to its career fairs in order to preserve federal funding. "The judge wasn't persuaded by the First Amendment argument as was the one in the district court," Burt said.
Asked whether any further action can be taken to battle the Solomon Amendment, Burt said that after the Supreme Court decision, "the courts have shut the door to further litigation." However, he added, there is a challenge to the "don't ask, don't tell" policy currently being considered by the 9th Circuit Court of Appeals.
In a statement regarding the decision, Yale Law School Dean Harold Hongju Koh said he was "disappointed by this outcome" but was "proud that we defended our right to academic freedom and spoke up for the equal opportunity of all of our students to work for our military services."
Vice President for Public Affairs and University Relations Michael Chapman said that Brown has not taken any action against the military's discrimination policy. "Brown complies with the Solomon Amendment because it is the law of the land," Chapman said.
